First Amendment Now Allows Boobies Bracelets But Not American Flag Shirts In Public Schools

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Rest easy, America, because all is right with the First Amendment thanks to the wisdom of our federal judges: American public schools can ban American flag T-shirts in high schools but must allow “I (heart) Boobies!” bracelets in middle schools.

Makes total sense, right?

The “I (heart) Boobies!” case ended this week after the school district in Easton, Pa. agreed to pay $385,000 in attorneys’ fees to the American Civil Liberties Union of Pennsylvania. The district lost an appeal involving students who wore colorful breast cancer awareness bracelets bearing the “I (heart) Boobies!” slogan.

The settlement between the school district and the ACLU ended almost four years of litigation, notes The Morning Call, Easton’s main newspaper.

The case began in 2010 when a couple of middle school students defied a previously-imposed ban and wore the rubber bracelets — distributed by the Keep A Breast Foundation — on school premises.

School officials responded by suspending the students for a day and a half and prohibiting their attendance at a school dance.

The ACLU intervened, arguing that the punishments violated the free speech rights of the middle school girls under the Constitution.

The Easton school district lost in both district court and on appeal in the Third Circuit. Easton Area solicitor John Freund took the case to the Supreme Court, but the highest court in the land did not grant certiorari. (RELATED: Does Antonin Scalia Heart Boobies?)

Mary Catherine Roper, an attorney for the ACLU who has represented the two bracelet-wearing teens, argued that the word “boobies” is harmless.

“The school district has this fixation that boys can’t handle anything,” she told The Daily Caller. “The school district attorney talks about this boiling cauldron of hormones that happens to be in seventh and eighth grade.”

Local taxpayers will be forced to pay the entire $385,000 settlement amount. On the bright side, it’s a discount from the $499,000 originally demanded by the ACLU.

Meanwhile, the full slate of judges on the U.S. Ninth Circuit Court of Appeals recently issued an order upholding a decision by officials at Live Oak High School in Morgan Hill, Calif. to send four students home for wearing American flag T-shirts to school on Cinco de Mayo.

The decision came down in mid-September — on Constitution Day. (RELATED: Happy Constitution Day! Ninth Circuit Affirms That It’s Illegal To Wear American Flag Shirts On Cinco De Mayo)

The trouble in the California case also dates back to 2010, when officials at Live Oak High — a school with a predominant Mexican-American student body — forced the students to remove their American flag-festooned shirts on Cinco de Mayo (May 5). Administrators called the shirts “incendiary” and worried that fighting would break out between white and Latino students if Latino students noticed the shirts. So, assistant principal Miguel Rodriguez told the students to turn their American flag shirts inside-out or hit the road with an excused absence

Students of Mexican heritage told local media that the students who wore American flag T-shirts should apologize. They said ethnically Mexican students wouldn’t wear a Mexican flag on the Fourth of July.

The high school, located 20 miles south of San Jose, has experienced numerous gang problems. Nevertheless, the school seems to have organized impressive Cinco de Mayo celebrations in recent years.

In the previous three-judge ruling, the Ninth Circuit held that school officials have wide latitude to limit freedom of expression under the First Amendment.

“Our role is not to second-guess the decision to have a Cinco de Mayo celebration or the precautions put in place to avoid violence,” the court modestly observed.

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