School district will appeal 'boobies' ruling

April 14, 2011 6:10:24 AM PDT
School officials in eastern Pennsylvania will appeal a federal judge's ruling that allows students to wear breast cancer fundraising bracelets that say, "I (heart) boobies!"

The Easton Area School District voted unanimously Wednesday to appeal the decision by District Judge Mary McLaughlin.

The judge's decision came in lawsuit filed by two middle school students who received in-school suspensions for wearing the bracelets.

McLaughlin ruled Tuesday the district cannot ban the rubber jewelry because it is not lewd, vulgar or distracting to the school day.

District solicitor John Freund says the decision "undermines the authority of school officials to promote civil dialogue and maintain decorum in the schools."

The judge's ruling issued earlier in the week declared "the bracelets... can reasonably be viewed as speech designed to raise awareness of breast cancer and to reduce stigma associated with openly discussing breast health," U.S. Judge Mary McLaughlin wrote in a 40-page ruling issued Tuesday. She added that the school district had not shown the bracelets would be disruptive in school.

The American Civil Liberties Union, representing the girls, had sued to overturn the ban and stop the school from punishing their clients. McLaughlin issued a temporary injunction Tuesday that bars the Easton Area School District from banning the $4 rubber bracelets until the case goes to trial.

The judge heard testimony from the students and school administrators in December.

Easton school officials argue the slogan suggests a sexual double entendre and leads to in-school distractions. They also suggested two boys had tried to touch the girls inappropriately.

District solicitor John Freund said he was "very disappointed" with the ruling. He said no decision has been made on an appeal.

"We find it very difficult to believe that the judge could not find that there was a sexual double-entendre in the message," Freund said. "If the ruling stands, certainly the educator's job is going to be that much more difficult in deciding these issues with the court second-guessing them."

Easton is one of several school districts around the country to ban the bracelets, which are distributed by the Keep A Breast Foundation of Carlsbad, Calif. The nonprofit has said it sells the bracelets to engage young people in breast cancer awareness.

Students Brianna Hawk and Kayla Martinez testified that they did not intend the message to be sexual. They received in-school suspensions last fall but hope to have their disciplinary records expunged.

Martinez fought the case in memory of a late aunt who battled breast cancer, she said. Friends have told her that teachers have called the lawsuit a waste of time.

"I thought it was worth my time," Martinez, 13, told The Associated Press on Tuesday. "In our generation, all the teenagers ask me about the bracelet. So it shows the bracelets teach a lot to kids."

The Keep A Breast Foundation - which concedes their message isn't for everyone - gets $1.50 from each bracelet sold by an outside retailer and $4 from its own sales.

Schools from Florida to California have banned the bracelets. One Oregon high school said the message was getting lost on the ninth-grade boys who were wearing them.

The ACLU has intervened in similar school disputes across the country, including a second case in Pennsylvania and one in Wyoming. But the Easton families are the first to file suit

Freund has argued that some in the community perceived the "boobies" message as sexual, even if the girls did not.

McLaughlin, in her ruling, noted that the school itself used the word "boobie" in announcing the ban on the intercom.

"If the phrase 'I (heart) Boobies!' appeared in isolation and not within the context of a legitimate, national breast cancer awareness campaign, the school district would have a much stronger argument," McLaughlin wrote. "This is not the case here. One of the bracelets ... did not even contain the word 'boobies,' but rather said 'check y(heart)ur self!!"'

ACLU lawyer Mary Catherine Roper cheered the judge's decision, which referenced Supreme Court case law on the limits of student speech - and school censorship.

"She rejects the school district argument that it's really just for the school district to decide what is and isn't appropriate language to use in school," Roper said. "You look at it in context. It isn't written on a bathroom wall. It's a breast cancer awareness bracelet."