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Battle over 'boobie' bracelets back in court

By Len Righi, WFMZ.com Reporter
Published On: Feb 20 2013 12:14:16 PM CST
Updated On: Feb 20 2013 12:48:34 PM CST

Battle over bracelets

PHILADELPHIA -

A federal legal panel sharply quizzed attorneys on both sides of the Easton Area School District controversy over breast cancer awareness bracelets as they debated standards for student advocacy.

District solicitor John Freund and Mary Catherine Roper, of the ACLU of Pennsylvania, fielded questions for about 70 minutes Wednesday morning from the 13-member Third Circuit Court of Appeals in front of a packed courtroom in Philadelphia.

There's no word on when the court will reach a decision.

Wednesday's hearing is the latest court action involving the district and middle school students Kayla Martinez and Brianna Hawk, who were punished for wearing banned "I ? Boobies (Keep A Breast)" bracelets on the district's Breast Cancer Awareness Day in 2010.

A federal district court judge issued a preliminary injunction in April 2011 against the district, and the district's appeal was heard by a three-judge panel last April.

Freund told the court Wednesday that district administrators acted properly in 2010 when they banned the bracelets from middle school classrooms, saying the bracelets were "a dress code violation" and the ban was needed to insure "civility of discourse in the classroom."

He said by not allowing administrators to ban the bracelets, the floodgates would be opened for many other items with even more graphic sexual double entendres "as long as it's for a good cause."

Roper, representing the students who were punished, said school officials erred by not taking into account the entire context of the bracelet's message.

The bracelets were "part of a breast cancer discussion," she said. "Everyone recognized that. ... There is no evidence that anyone was misusing the bracelets."

Chief Judge Theodore McKee pressed Freund hardest, asking, "What makes [the word] boobies a big problem?"

When Freund answered, "It's how the words are perceived," McKee shot back, "By whom? The least mature, the most troublesome member of the audience?"

In response to a question from Judge D. Brooks Smith about the district's unease with double entendres, Freund said, "This [policy] is trying to avoid throwing a match into a cauldron of boiling hormones."

Judge Kent A. Jordan seemed sympathetic to one of Freund's main points: that the school district should be given wide latitude in making such determinations.

"I would think your argument would be the school district should not have to come before the court every time it is confronted with something like this," Jordan said.

"That is my argument," Freund replied.

Roper was pushed by some of the judges on her claim that potentially offensive words are protected speech in certain contexts.

Judges D. Michael Fisher, Anthony Scirica and Thomas Hardiman asked a series of questions about how Roper's standard would apply if "I ? Boobies" was on a T-shirt, or a banner, to make the message have greater impact.

Roper answered that school officials "can distinguish between intent and message."

McKee asked Roper for a test that school administrators can use to determine what they can and cannot censor.

"If a word is not frankly lewd, and if there is not some concrete and articulate reason that the interpretation of the word is the lewd one rather than the laudable one," Roper answered.

Although much of the discussion was sober and involved parsing various legal points and judicial precedents, there was an unexpected moment of drama and humor just before the judges recessed.

Judge Dolores Sloviter, who had been silent throughout the hearing, asked Freund, "How can you tell a court that lost one of its members to breast cancer that the word boobies is offensive? I don't see anything offensive. Having breast cancer is offensive."

She told Freund that breast cancer awareness bracelets are worthwhile, and pointed out she was wearing a Parkinson's awareness wristband. "I picked it up a few days ago," she added.

McKee broke the tension by asking Sloviter, "I hope you didn't just pick that up, that you paid for it."

To which one of the other judges added: "You have the right to remain silent,"
as laughter rippled throughout the courtroom.