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H., et al. v. Easton Area School District

April 12, 2011

H., ET AL.
v.
EASTON AREA SCHOOL DISTRICT



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

This case involves a middle school's ban on breast cancer awareness bracelets that bear the slogan "I Boobies! (Keep A Breast)" and similar statements. These bracelets are distributed by the Keep A Breast Foundation, which operates breast cancer education programs and campaigns that are oriented toward young women. On the school's designated breast cancer awareness day, two female students defied the school's bracelet prohibition and both were suspended for a day and a half and prohibited from attending an upcoming school dance. The students, by and through their parents, filed this law suit seeking, among other things, a preliminary injunction to enjoin the school district from enforcing the ban.

The plaintiffs argue that the school has violated their First Amendment right to freedom of speech. The two Supreme Court cases examining student speech that are most relevant to this case are Fraser and Tinker. See Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). Fraser allows schools to ban speech that is lewd or vulgar. If the speech does not meet the standard of Fraser, Tinker applies. Tinker forbids the suppression of student expression unless that expression is reasonably foreseen as a material and substantial disruption of the work and discipline of the school. The school district contends that the bracelets are lewd and vulgar under Fraser and if not, that they caused a substantial disruption of school operations under Tinker or the School District had a reasonable expectation of such disruption.

The Court concludes that these bracelets cannot reasonably be considered lewd or vulgar under the standard of Fraser. The bracelets are intended to be and they can reasonably be viewed as speech designed to raise awareness of breast cancer and to reduce stigma associated with openly discussing breast health. Nor has the school district presented evidence of a well-founded expectation of material and substantial disruption from wearing these bracelets under Tinker. The Court will therefore grant the plaintiffs' motion for preliminary injunction.

I. Procedural History

On November 15, 2010, the plaintiffs filed this law suit and a motion for a temporary restraining order and preliminary injunction. The plaintiffs' motion sought a temporary restraining order allowing the plaintiffs to attend the upcoming "Snow Ball" middle school dance, which the school had prohibited the plaintiffs from attending as punishment for wearing their breast cancer awareness bracelets, along with one and a half days of in-school suspension.

The Court held a telephone conference with counsel for the parties and urged the school to allow the students to attend the school dance with the option of imposing comparable punishment if the Court held that the ban was constitutional. The school agreed to the Court's proposal. The Court then denied the motion for a temporary restraining order without prejudice.

On December 16, 2010, the Court held a day-long evidentiary hearing. At the hearing, the Court heard testimony from the two minor plaintiffs, B.H. and K.M.; Kimberly McAtee, a representative from the Keep A Breast Foundation; Stephen Furst, the Director of Teaching and Learning for the Easton Area School District; Anthony Viglianti, the Seventh Grade Assistant Principal; Amy Braxmeier, the Eighth Grade Assistant Principal; and Angela DiVietro, the Head Principal of Easton Area Middle School for grades seven and eight. On February 18, 2011, the Court held oral argument on the plaintiffs' motion.

II. Findings of Fact

This case involves two students, B.H. and K.M., who are

currently enrolled in the Easton Area Middle School. B.H. is a thirteen-year-old, eighth grade student at Easton Area Middle School. K.M. is a twelve-year-old, seventh grade student at Easton Area Middle School. The defendant Easton Area School District (the "School District") is a political subdivision of the Commonwealth of Pennsylvania. (Notes of Testimony, Evidentiary Hearing, Dec. 16, 2010 ("N.T.") at 22:4-5;*fn1 Compl. ¶¶ 6-7; Answer ¶¶ 6-7.)

Easton Area Middle School (the "Middle School") is a large complex that holds two separate schools: a fifth and sixth grade school and a seventh and eighth grade school. The fifth and sixth grade school has a separate entrance, separate classrooms, separate lunchrooms, and is administered separately from the 7-8 building. The plaintiffs attend classes in the Middle School's 7-8 building. (N.T. 153:2-154:5.)

The bracelets at issue in this case include several colored rubber bracelets that contain various slogans including "I boobies! (KEEP A BREAST)", "check yur self!! (KEEP A BREAST)", and a bracelet with an amalgam of similar slogans.*fn2

The web address for the Keep A Breast Foundation, keep-a-breast.org, is contained on the inside of all of the bracelets. (See Pls.' Ex. 39, 40.)

A. Keep A Breast Foundation

The Keep A Breast Foundation (the "Foundation"), a 501(c)(3) nonprofit organization, distributes these bracelets. The Keep A Breast Foundation operates breast cancer education programs and campaigns that are oriented towards young women. The "I Boobies! (Keep A Breast)" bracelets serve as an awareness and fund-raising tool for the Foundation. The Foundation targets its awareness efforts to young women under 30. One of the goals of the Foundation is to educate young women about breast cancer and to help young women discuss breast health openly with their doctors. The Foundation encourages young women to establish a baseline knowledge of how their breasts feel in order to improve their ability to detect changes in their breasts. Breast cancer prevention and health information is available by clicking on the health page of the Foundation's website. (N.T. 105:21-24, 120:19-121:2, 121:3-6.)

The Keep A Breast Foundation believes that a barrier to achieving their goals is negative body images among young women. Young women may feel that a stigma is associated with touching, looking at, or talking about their breasts. The Foundation's "I Boobies!" campaign seeks to reduce this stigma and to help women talk openly and without embarrassment about their breasts. The bracelets are intended to be and may be reasonably viewed as conversation starters to facilitate discussion of breast cancer, and to help overcome fear and taboo associated with discussing breast health.*fn3 (N.T. 98:9-20.)

The Foundation controls the distribution of the bracelets to ensure that the purchaser will have access to the Keep A Breast Foundation's educational materials. Truck stops, convenience stores, vending machine companies, and even "porn stars" have expressed interest in selling or being associated with the bracelets and the Foundation, but the Keep A Breast Foundation has rejected these requests. (N.T. 101:18-102:13.)

B. The Plaintiffs' Purchase of the Bracelets The plaintiffs purchased their "I Boobies! (Keep A Breast)" bracelets with their mothers prior to the start of the 2010-11 school year. B.H. learned about the bracelets and their purpose from her friends. B.H. and her mother Jennifer Hawk sought out the bracelets together, making multiple attempts to find them in stores. After purchasing the bracelets, B.H. wore them every day, up until her suspension. By purchasing and wearing the bracelets, B.H. wanted to show her support for breast cancer prevention, raise awareness and initiate dialogue about breast cancer, and support the Keep A Breast Foundation's breast cancer prevention programs. B.H. also wanted to honor a close friend of the family who survived the disease after undergoing a double mastectomy. (N.T. 22:6-21, 56:12-15, 22:13-15, 22:15-21, 23:4-17, 26:1-5, 27:20-22, 23:18-24:23, 24:1-20, 43:1-10.)

K.M. first learned about the "I Boobies! (Keep A Breast)" bracelets over the summer of 2010 from her friend B.H. Before the school year started, K.M. and her mother Amy McDonald-Martinez traveled together to the mall to purchase "I Boobies! (Keep A Breast)" bracelets. After purchasing the bracelets, K.M. wore them every day, up until her suspension. K.M.'s mother, Amy McDonald-Martinez, also wore a Keep a Breast Foundation bracelet that contained the phrase "check yur self!! (Keep A Breast)." (N.T. 55:25-56:8, 56:14-57:9, 59:5-24, Pls.' Ex. 41.)

Both young women researched and learned more about breast cancer after purchasing these bracelets. B.H. learned about the Keep A Breast Foundation through in-store displays and the Foundation's website. After purchasing the bracelets, K.M. sought out more information about breast cancer, and learned that the youngest girl diagnosed with breast cancer was ten years old. She also learned about breast cancer risk factors, the effects of breast cancer, and how to check one's self for lumps. She learned about her great aunt who had breast cancer and that breast cancer "can run in the family." Both B.H. and K.M. believe that the bracelets more effectively raise awareness for breast cancer than the color pink. B.H. explained that "no one really notices [the color pink]." (N.T. 42:12-25, 60:11-23, 74:3-10, 56:25-58:12, 91:22-92:6, 24:12-23, 64:24-66:4, 24:12-23.)

C. The School's Bracelet Ban

The "I Boobies! (Keep A Breast)" bracelets became popular with students at the Easton Area Middle School during the beginning of the 2010-2011 school year, which began on August 30, 2010. In mid- to late-September, approximately four or five of the 120 teachers in the Middle School's 7-8 building spoke to or electronically contacted Ms. Braxmeier about the "I Boobies! (Keep A Breast)" bracelets. The teachers sought instruction regarding how the school would choose to handle the bracelets. The three principals, Mr. Viglianti, Ms. Braxmeier, and Ms. DiVietro, conferred and agreed that the bracelets should be banned. (N.T. 190:10-16, 210:16-211:5.)

On September 23, 2010, Mr. Viglianti sent an email instructing faculty and staff to ask students to remove "wristbands that have the word 'boobie' written on them." Mr. Viglianti stated that students instead may wear pink on October 28th in honor of Breast Cancer Awareness Month. This initial ban was not communicated directly to the students. On October 27, 2010, a day before the School District's designated breast cancer awareness day, Ms. DiVietro recirculated the email that Mr. Viglianti sent on September 23, 2010. In response, a teacher requested that the ban be communicated to the students directly by the administration.*fn4 On the afternoon of October 27, 2010, approximately two months into the school year, Mr. Viglianti read a prepared statement over the public address system describing the ban. The next morning, October 28, 2010, a student delivered a statement prepared by the School administration on the School's TV station that reiterated the ban. The School's TV announcement contained the word "boobies." (Pls.' Ex. 1.; Pls.' Ex. 2.; N.T. 64:3-5.)

At the time that the ban initially went into effect, September 23, 2010, none of the three principals had heard any reports of disruption or student misbehavior linked to the bracelets. Nor had any of the principals heard reports of inappropriate comments about "boobies." The three principals offered various reasons for their decision to ban the bracelets.

Mr. Viglianti testified at his deposition that the administrators' decision was based on the term "boobies," which was "not appropriate." He thought that some of the students were not mature enough "to understand and see that [as] appropriate", and he was concerned that the use of the word "boobies" in the bracelets would cause students "to start using the word just in communication with other students, talking with other students." He testified at the evidentiary hearing that the word "boobies" was "vulgar," based on his understanding that "vulgar is slang." At his deposition, Mr. Viglianti also testified that it would be similarly inappropriate for either the word "breast" or the phrases "keep-a-breast.org" or "breast cancer awareness" to be displayed on clothing in the middle school. During the evidentiary hearing, he changed his position and concluded that a bracelet bearing only "keep-a-breast.org" would be permissible. (Viglianti Dep. 50:1-10, 18:3-19:1, 20:12-23, 24:14-21; N.T. 128:16-19, 124:18-125:21.)

Ms. DiVietro also clarified her position at the evidentiary hearing. At her deposition, Ms. DiVietro testified that the words "keep-a-breast.org" are "not acceptable" for middle schoolers because the word "breast" "can be construed as a sexual connotation." At the evidentiary hearing, she concluded that the words "breast cancer awareness" or a bracelet that only said "keep-a-breast.org" would not be vulgar in a middle school. (DiVietro Dep. 23:4-25, 51:24-52:2; N.T. 229:3-230:23, 242:18-243:3.)

At the evidentiary hearing, the School's principals testified that the bracelets violate the Middle School's dress code because the phrase "I Boobies!" is an impermissible double entendre about sexual attraction to breasts. (N.T. 179:18-22, 211:16-22.)

Ms. DiVietro testified that allowing students to wear the Keep A Breast Foundation's "I Boobies! (Keep A Breast)" bracelets would diminish her authority to prevent students from wearing clothing with other statements that the administrators deemed "inappropriate." She explained that banning the "I Boobies! (Keep A Breast)" bracelets "makes a statement that we as a school district have the right to have discretionary decisions on what types of things are appropriate and inappropriate for our school children." (N.T. 211:23-212:1, 224:14-226:19, 228:5-10.)*fn5

On October 27, 2010, B.H. wore her bracelets to school. During lunch, a cafeteria monitor noticed her bracelets and summoned the security guard, ...


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