What “Bong hits” taught us about “Boobies” and student speech

Last month, the Easton Area School District in Pennsylvania voted 7-1 in favor of filing a writ of certiorari to the U.S. Supreme Court asking the Court to overturn the Third Circuit Court of Appeals’ decision in B.H. v. Easton Area School District.  What does this mean to you?  If the SCOTUS grants the writ, thereby agreeing to hear this case, and overturns the lower court’s decision, you – middle or high school students and/or parents – will not be able to walk the hallways with an arm full of “I ❤ Boobies” bracelets.  Not even one.

Two middle school girls – Kayla Martinez and Brianna Hawk – sued Easton School District for infringing upon their 1st Amendment rights after both were suspended for wearing the bracelets despite being told not to.  The girls claim they are raising awareness  about breast cancer by supporting the Keep a Breast foundation, the organization that sells the armbands.  The school district claims the language of the armband’s message is not appropriate for public middle school students to advertise.  We’re guessing the word “boobies” is the content they’re most uneasy with.

Somewhere there's a Taylor Swift song that matches this sentiment.  We just don't know what song that is...

Somewhere there’s a Taylor Swift song that matches this sentiment.

Bold move by two brash millennials fighting the good fight in the name of free speech and the 1st amendment?  Or, an overzealous school administrator quick to thwart student speech?

We’re not sure.  Which is why we really hope SCOTUS grants cert in this case.  This case is similar to another school speech case and might shed light on a potential outcome, if it gets to the SC.

Remember Morse v. Frederick?  That was the “Bong hits for Jesus” case from 2007 in which Joseph Frederick, a high school student, sued his school for violating his free speech rights.  Frederick was suspended for displaying a banner with the aforementioned quote at a school-sponsored event in Juneau, Alaska.  On a side note, you can go see the actual banner he carried at the Newseum in Washington, D.C.  It’s huge.  Maybe 8-10 feet long.  You have to look above the 1st Amendment exhibit walls, almost up on the ceiling, to find it.  We’re guessing the museum did that on purpose so 4th-grade field trip chaperones can avoid explaining the message to their students.  [“Ms. Gallagher? What’s a bong hit?” – Gah!!  No, thank you.]

Joseph Frederick's infamous sign, now in the Newseum (Washington, D.C.)

Joseph Frederick’s infamous sign, now in the Newseum (Washington, D.C.).

Frederick lost in the SCOTUS in a 5-4 decision that ultimately affirmed schools’ and administrators’ power to ban student speech that supports illegal activity (like drugs or drug paraphernalia) and disrupts the learning environment.  The decision was an obvious victory for administrators, deans, and teachers, but another blow to students and their free speech rights.  And this is where we’re  torn.  As you know, all of us at SB are educators so we see both sides to this case.  We understand the priority schools have to preserve a safe and productive learning environment for minors.  Schools assume parental roles when students are in the building, which case-law supports in loco parentis  schools/teachers/admins play, which gives adults great authority.  But, as arbiters of democracy fanning the flames of active participation in our students’ quest to flex their rights, SB also sympathize with the kids.

When I teach Morse, I always ask the students if this was the case they wanted the SCOTUS to answer a really critical 1st Amendment question regarding their rights in school?  I ask the students “if the content of the message were any different, would your opinion of it change?”  Depending on the students, depending on the time of the school year when this case is taught, the culture and climate of the school building – all of these factors affect their initial opinion on the case.  That being said, the majority of students  vocalized a fervent desire to see student speech advocated for in the Supreme Court and an equally, if not stronger, frustration over the content of the speech inherent in the Morse case.  Kids don’t like the idea of other kids blowing 1st Amendment trump cards on words like “bong hits” or even sexual innuendo, such as the speech in the Bethel v. Fraser case.  They know how hard it is to be taken seriously and deride the actions and speech of one “immature” outlier as misrepresentative of who they, on the whole, are.  They take the majority of school speech cases, with the exception of Tinker v. Des Moines, and frustratingly ask “Why’d it have to be these cases the Supreme Court decided?!”  So, to these minors, the “Boobies” case hatches little hope of being – finally – the case they’ve been waiting for.  The one that will curb encroachment into their individual freedoms and rights.  Again, we get it.

Mary Beth Tinker - champion and advocate of student speech rights and namesake in the famous 1st Amendment case Tinker v. Des Moines.  Another boss.

Mary Beth Tinker (left) – champion of student speech rights and namesake in the famous 1st Amendment case Tinker v. Des Moines. Another boss.

But then there’s the perspective of the school.  Apparently the community of Easton is not supportive of the Board’s decision to take the case to the SCOTUS.  The primary concern is about the costly endeavor of hiring Supreme Court litigants and the risk of losing in court, again.  Two points on those concerns: First, probably second to “Obamacare” headlines are those about deficits in school funding, so choosing to pursue legal action is less about what’s in the best interest of kids and schools and, often times, more about the bottom line for the school district.  This inescapable fact is equal parts disappointing and no surprise to anyone in education.  But imagine you’re the principal at this school (second point)?  If he lets the lower court ruling stand, this is a big win for students with potentially  dubious consequences for the school.  The primary consequence is the opening of the floodgates for student’s to test the speech waters to shore up exactly where a bright line separating appropriate from inappropriate language lies.  New uncertainties and confusion among teachers/deans/admins could lead to arbitrary suspensions in the hunt to find the line, leading to future lawsuits, leading to even costlier insurance premiums and legal fees.

If the Easton school board doesn’t pursue an appeal to the SCOTUS, there are great financial risks and existing burdens.  One specific burden is an area of federal civil rights law that – as we learned only because of this case – provides for citizens to recover legal fees if they win a civil action in court against government (the school is the “government” in this case).  According to ACLU attorney Mary Catherine Roper, she expects to file action for the fees soon.  In a nutshell, the school pays either way.  Although schools have insurance to cover costs like legal fees, high deductibles and caps keep districts from pursuing costly litigation.

Under its liability insurance policy, the district is responsible to pay a $10,000 deductible and 20 percent of the attorney fees. The district’s insurance company limits coverage for attorney fees to $100,000 per case, Freund said. Frank LoMonte of the Student Press Law Center cautioned against continuing litigation just because insurance will pay for most of it.  ‘That’s a terrible way to look at it,’ LoMonte said, noting that filing insurance claims can lead to higher premiums. ‘So you’re going to pay for it, as will other school districts that use the same insurance company.‘” (Source: Peter Hall, The Morning Call)

Again, despite the potential costs and the odds being against them (remember, the SCOTUS grants roughly less than 1% of the writs they get each term), the school board is forging ahead with petitioning the SC to overturn the lower court decision.  This case has the potential to affirm existing deference to school administrators on student speech allowances or undue forty years of gradual chipping away of 1st Amendment protections of students in schools.

Update:  The SCOTUS did not grant cert in this case leaving the lower court decision in tact.  This spells a victory for the girls and student speech, for now.