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Judge: Students Do Have Free Speech Rights

A group of students in New Jersey got upset when their school district announced a plan to require school uniforms, so they decided to protest. Two fifth grade students attending two separate elementary schools in the Bayonne School District wore buttons that said “No School Uniforms” and a slashed red circle. The background of the button was a picture of a hitler youth rally. There were no visible swastikas nor any other nazi regalia, but nobody contested the content of the image. (HT to Lisa Macci)

The District sent identical letters home to each student’s parents. The letters stated that “[t]he background images on this badge are considered objectionable[,] are offensive to many Bayonne citizens[,] and do not constitute free speech (emphasis added) according to Mr. Kenneth Hampton, attorney for the Bayonne Board of Education.” The letters threatened suspension in the event that M.D. and A.L. wore the buttons again. The parents of M.D. and A.L. filed this suit alleging violation of the First Amendment right of free speech.

Reacting to this threat, the students filed suit and sought a preliminary injunction allowing them to wear the buttons at school. In granting the injunction, the Court wisely distinguished the latest right-wing result-oriented abortion of a case, Morse v. Frederick, 127 S.Ct. 2618 (2007) (The Bong Hits for Jesus case). Viewing Morse narrowly, the Court held that “[Morse does not] apply, given the absence of any mention, allusion or reference to illegal drug activity.” Nice work by the judge, I must say.

It is true that students have a lower degree of First Amendment protection when they are at school, and I doubt that anyone could seriously argue that the First Amendment should trump the school’s educational mission. If it did, we might wind up with every third grade classroom turning into a “political protest” any time the students decided that they didn’t want to work.

Nevertheless, the First Amendment does not die altogether at the schoolhouse door, despite Clarence Thomas’ wishful thinking.

The Court distinguished the actual content of the button from any number of hypothetical analogies. The opinion states that if the buttons displayed visible swastikas, burning crosses, or the like, the analysis would be different.

In discussing the actual image, the Court wrote:

The image here is not profane, nor does it contain sexual innuendo. It is, in fact, a rather innocuous photograph – rows and rows of young men, all facing the same direction and wearing the same outfit (with no identifying marks or patches). The photograph contains no visible swastikas, and the young men are not giving the infamous “sieg heil” salute. As noted by Plaintiffs’ counsel at oral argument, the young men might easily be mistaken for a historical photograph of the Boy Scouts. The image may be interpreted as insulting or thought to be in poor taste, but it is not “lewd,” “vulgar,” “indecent,” or “plainly offensive” as set forth in Fraser. Fraser and Kuhlmeier do not apply. Thus, this Court analyzes the speech here under the general rule of Tinker.

Tinker requires a school district to demonstrate, before prohibiting a student’s speech, that the speech will “substantially interfere with the work of the school or impinge upon the rights of other students.” Tinker, 393 U.S. at 509. Defendants make no such

The judge held that the school district provided no evidence that the buttons would disrupt the educational process, nor that they would bring about a breakdown in discipline.

“[t]he passive expression of a viewpoint in the form of a button worn on one’s clothing ‘is certainly not in the class of those activities which inherently distract students and break down the regimentation of the classroom.’” Because the Button did not cause any disruption and Defendants failed to demonstrate a “specific and significant fear of disruption, not just some remote apprehension of disturbance,” Defendants’ censorship is unwarranted. (citations omitted)

Even though the students prevailed, it is important to note that this is only a preliminary injunction, and the case could ultimately turn the other way. However, given that the standard for a preliminary injunction requires that the Court determine that the movant has a high likelihood of success in the case, I think it is safe to say that Free Speech is alive and well in Bayonne New Jersey. Additionally, the injunction is very narrow. The students are now allowed to wear the buttons, but they are not allowed to distribute it at school, and the injunction does not apply if the buttons are later deemed to materially and substantially disrupt the school environment.

Order: DePinto v. Bayonne Board of Education, ___ F.Supp.2d ___ (D.N.J. 2007)


In a press release issued Thursday, Bayonne School District Superintendent Patricia McGeehan said the district was disappointed with the ruling because it conflicts with the district’s goal of creating a school environment free of “images of racial and ethnic intolerance.” (source)

The school district is clearly lying here. This is more about administrators who are not used to being criticized than trying to free the district of racial and ethnic intolerance.

In the interest of full disclosure — I favor school uniforms. I think that school uniforms are a great idea. I am no expert on the subject, but what I have read and heard suggests that they improve the learning environment, they break down barriers between the socioeconomic classes, and are in all measurable ways good for the students and the school.

Nevertheless, I am not in favor of petty little pencil pushers who don’t have the strength of mind or soul to allow their convictions and opinions to be challenged by opposition. The students are wrong about school uniforms, but they have a right to be wrong, and to express their wrong opinions in a civil manner — as these students have.

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