B.H. & K.M. v.

Easton Area School District (2013)

Eastern Kentucky University

Hannah Paragon
 The case of B.H. & K.M. v. Easton Area School District (2013) came to be due to a

concern of whether young people can support the Breast Cancer Awareness cause by exposing

them to the realities of the illness. The Keep A Breast foundation believes that it is appropriate

for young people to support the cause, as tumors found in younger women may be more

aggressive (“I Love Boobies,” n.d.). In attempt to open lines of communication with the younger

generation, the Keep A Breast foundation released bracelets that said, “I <heart> Boobies” in

2008.

The bracelets quickly became controversial, as some found the bracelets to be more lewd

than educational. The Easton Area Middle School Principal predicted that there would be quite a

few of these bracelets appearing in the school during October, breast cancer awareness month.

To prevent students from wearing the bracelets, she made an announcement over the intercom

declaring them to be inappropriate and not to be worn on school grounds. Additionally, the

principal urged students to instead wear pink on October 28th to support the cause.

Despite the announcement made by the principal regarding the bracelets, students

Brianna Hawk and Kayla Martinez chose to wear them to school anyway to support the cause.

When the girls refused to remove the bracelets, they were suspended. The mothers of the two

students filed a lawsuit against the school district where they expressed that asking the girls to

remove the bracelet was unjust. The girls believed that their First Amendment right had been

intruded upon by asking them to remove the bracelets.

When this case went to the U.S. District Court for the Eastern District of Pennsylvania,

the court sided with the students. It was said that the bracelets were not lewd or vulgar, and

wearing them is a right protected by the First Amendment (B.H. & K.M. v. Easton, 2013). This

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was not the end of this controversial case, though, as the school district then appealed the

decision of the lower court to the U.S. Court of Appeals – Second Circuit.

While reviewing this case, the court had to determine whether granting the injunction

would do more harm than good and if it was in the public interest. There are two major U.S.

Supreme Court cases cited by this case, Tinker v. Des Moines School District (1969) and Bethel

School District v. Fraser (1986). Tinker v. Des Moines School District (1969) is a well-known

case that had to do with students wearing black arm bands in school as a form of silent protest

during the Vietnam War. The precedent set in this case was that student’s speech may only be

limited on school grounds if there is a disruption to the educational process, as student’s do not

lose their constitutional rights on school grounds (Tinker v. Des Moines, 1969). This precedent is

relevant in B.H. and K.M.’s case because the bracelets did not disrupt the educational process,

and by this precedent they should have been allowed to wear them.

Bethel School District v. Fraser (1986) is a case where a student made vulgar comments

and sexual innuendos during a school assembly. The lower courts said that based on the

precedent set in Tinker, the student had the same rights as Tinker and was protected by the First

Amendment. The Supreme Court, however, reversed the lower court’s decision because the

student’s speech was vulgar and offensive to other students (Bethel v. Fraser, 1986). This

precedent is relevant in B.H. & K.M.’s case because the school system felt that the bracelets

presented a vulgar message, and if that were the case they would not have been able to wear

them. It is easy to see how schools might feel a civic duty to protect students from lewd and

offensive speech, but an important question to ask is this: would people actually find the word,

“boobies” to be offensive?

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 After much consideration, the U.S. Court of Appeals ruled in favor of the students in

August of 2013. It was stated that because the bracelets supported a public discussion about

Breast Cancer Awareness, they are not vulgar. It is a different question to ask, though, how this

case may have been affected if the bracelets had not been associated with such a cause. In 2014,

the school district tried to take the case to the U.S. Supreme Court, though the appeal was

declined.

The precedent set in this case is that speech that pertains to a political or social issue

cannot be banned in the school system. The tricky part of this precedent is that it is possible for

vulgar speech to support a political or social issue. So, what happens when speech falls in the

middle of being both vulgar and a part of a public discussion? It is at that point that the speech

must undergo extensive analysis by the judicial system to determine if the speech is allowed.

The standards set in the case of B.H. & K.M. v. Easton Area School District (2013) have

already been considered in other cases, such as B.L. v. Mahanoy Area School District (2017). In

this case, a student was removed from her high school cheerleading team due to her use of

profanity in a Snapchat sent off-campus, outside of school hours. The court sided with B.L. and

restored her position on the cheerleading team, as the school system does not have the right to

discipline students for their off-campus actions. The case cites B.H. and K.M. to determine

whether the First Amendment allows the school to remove the students from school activities, as

B.H. and K.M. were not allowed to attend their school dance after wearing the, “I <heart>

Boobies” bracelets. Additionally, the case was used to determine if there was irreparable harm

presented by the speech (B.L. v. Mahanoy, 2017).

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 It is vital that educators take the First Amendment rights of their students into account,

even if they do not agree with the speech at hand. B.H. & K.M. v. Easton Area School District

(2013) has paved the way for cases to come, by showing school districts that it is possible to

protect students while also honoring their First Amendment rights.

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 References

Bethel School District v. Fraser, 478 U.S. 675 (1986)

B.H. & K.M. v. Easton Area School District, 725 F.3d 293 (2nd Cir. 2013)

B.L. by Levy v. Mahanoy Area School District, 289 F.3d 607 (3rd Cir. 2017)

I Love Boobies! – Keep A Breast Foundation, (n.d.). Retrieved April 17, 2019, from

https://www.keep-a-breast.org/i-love-boobies/

Tinker v. Des Moines School District, 393 U.S. 503 (1969)