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A New Jersey federal district court has issued an order prohibiting a school district from disciplining elementary school students who wore a button protesting the school district’s mandatory uniform policy. M.D. and A.L., who attend separate elementary schools in the Bayonne School District (BSD), wore buttons bearing the phrase “No School Uniforms” with a slashed red circle overlaying a historical photograph of the Hitler Youth. BSD officials responded by sending letters to the students’ homes that stated, “The background images on this badge are considered objectionable[,] are offensive to many Bayonne citizens[,] and do not constitute free speech according to Mr. Kenneth Hampton, attorney for the Bayonne Board of Education.” The letters also threatened suspension if the students wore the buttons to school again. Their parents sued, alleging BSD had violated the First Amendment and seeking a preliminary injunction to bar BSD from disciplining a student who wears the button until the court has made a decision on the merits of the case.
The court began by stating that the U.S. Circuit Court of Appeals for the Third Circuit (NJ, DE, PA) has held that school districts regulate student speech in three circumstances: (1) vulgar, lewd, obscene, and plainly offensive speech, which a school may regulate under Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986); (2) school-sponsored speech, which a school may regulate under Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988); and (3) speech that falls into neither of these categories, which a school may be able to regulate under Tinker v. Des Moines Community School District, 393 U.S. 503 (1969). A fourth category recognized recently by the U.S. Supreme Court in Morse v. Frederick, 127 S.Ct. 2618 (2007), allows schools to restrict speech “reasonably viewed as promoting illegal drug use,” but the Supreme Court expressly rejected the argument in that case that the student’s drug references fell underFraser’s “plainly offensive” standard, which the Supreme Court found “should not be read to encompass any speech that could fit under some definition of ‘offensive.’”
The court rejected the BSD’s argument that Fraser should apply to this case since the Nazi imagery was not “plainly offensive” Because the speech in question was not school-sponsored nor drug-related, the court found the case was governed by Tinker. Applying the Tinker standard, the district found that “[b]ecause the Button did not cause any disruption and [BSD] failed to demonstrate a ‘specific and significant fear of disruption, not just some remote apprehension of disturbance,’ … [BSD’s] censorship is unwarranted.” The court also rejected BSD’s argument that recent Third Circuit precedent suggests that the Tinker standard either does not apply or is significantly relaxed for elementary school students. None of the Third Circuit cases cited by BSD discussed the applicability of Tinker to elementary school students, and none was decided on that issue, the court found.DePinto v. Bayonne Bd. of Educ., No. 06-5765 (D. N.J. Sept. 19, 2007)
