B.H. v. Easton Area School District, 725 F.3d 293 (3d Cir. 2013). The majority opinion in this en banc case, written by Judge Smith, begins as follows. “Once again, we are asked to find the balance between a student’s right to free speech and a school’s need to control its educational environment. In this case, two middle-school students purchased bracelets bearing the slogan ‘I ♥ boobies! (KEEP A BREAST)’ as part of a nationally recognized breast-cancer-awareness campaign. The Easton Area School District banned the bracelets” under its power to restrict vulgar, lewd, profane, plainly offensive, or substantially disruptive speech.
The students sued, and the District Court granted an injunction in their favor. The en banc court split, affirming the district court by a 9-5 vote. Joining Judge Smith in the majority were Chief Judge McKee and Judges Sloviter, Scircia, Rendell, Ambro, Fuentes, Fisher, and Vanaskie. Judge Hardiman’s dissenting opinion won the votes of Judges Chagares, Jordan, Greenaway, and Greenberg.
The two opinions consume a total of 107 pages. The opinions analyze in detail the Supreme Court cases in this area of constitutional law, from Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), through Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), to Morse v. Frederick, 551 U.S. 393 (2007), and are well worth reading in full.
A key part of the dispute between the majority and dissenting viewpoints was the effect to be given to Justice Alito’s concurring opinion in Morse. That concurrence, joined by Justice Kennedy, “provided the crucial fourth and fifth votes in the five-to-four majority opinion. But the two justices conditioned their votes on the ‘understanding that (1) [the majority opinion] goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (2) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.'” Since the bracelets here were part of a recognized nationwide campaign in connection with breast cancer, an extensively discussed social issue, the majority viewed Morse as forbidding the school district to ban the bracelets.
The majority discussed at length (ten pages) this application of the “narrowest grounds” rule, under which when “no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” The majority cited prior Third Circuit cases, and cases elsewhere (including at least one other Circuit decision that had viewed Morse as the majority here did), for its view.
The dissenters took a different view of the “narrowest grounds” principle here. They emphasized that, besides having filed their concurring opinion, Justices Alito and Kennedy expressly joined the majority opinion. Thus, “the narrowest grounds rule applies only to discern a single holding of the Court in cases on which no opinion on the issue in question has garnered the support of a majority.” The dissent cited cases from a number of other Circuits that had interpreted Morse as the dissenters did. Judge Hardiman and his colleagues also analyzed at length and rejected the majority’s view of its own cited Third Circuit cases on this issue.
The majority responded that the dissenters’ view of the “narrowest grounds” doctrine wrongly “places all of its weight on the distinction between a justice’s choice to follow his name with ‘concurring’ instead of ‘concurring in part’ or ‘concurring in the judgment.'” To the majority, that “elevate[d] formalism over substance at the expense of ignoring the very conditions on which a necessary member of the majority expressly chose to join the majority.”
This case is likely to go to the Supreme Court of the United States, where Justices Alito and Kennedy will have the chance to say exactly what they meant in Morse. But regardless of the outcome there (or if the Court does not grant review in this case), the opinions in this case as to how to apply the “narrowest grounds” doctrine make for a fascinating intellectual debate.