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NEW JERSEY — Two students — a fifth-grader and a seventh-grader — can wear buttons with the phrase “No School Uniforms” over a background picture of the Hitler Youth, a federal judge ruled Wednesday.

The court held that because the buttons were not disruptive, the Bayonne School District's censorship was “unwarranted.”

Karin R. White Morgen, the students’ attorney, said it was a “wonderful” decision for student free speech.

“The school will think twice before it suspends students for wearing honest buttons,” she said. “You are allowed to have an opinion, even in grammar school.”

In granting the preliminary injunction, Judge Joseph A. Greenaway Jr. rejected the school board’s argument that the buttons were offensive and therefore could be censored under the standard set by the 1986 Supreme Court case Bethel v. Fraser.

In Fraser, a student gave a speech in the school’s auditorium that used an extended sexual metaphor. The court upheld the school’s right to punish the student, citing “society’s interest in teaching students the boundaries of socially proper behavior.”

The board argued that “the photograph of the Hitler Youth is lewd, vulgar, indecent or plainly offensive under Fraser” and could therefore be censored. The court rejected that argument, reasoning that while the button may be insulting or in poor taste and offend some parents, teachers and students, it does not meet the standards established by Fraser.

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.”

Morgen said she thinks the district will now try to settle with the students.

But McGeehan’s statement said only that the district will consult with its lawyers to consider its legal options and expressed her concern about the precedent this ruling would create by allowing students “to wear buttons prominently displaying Nazi images in school.”

Greenaway’s opinion notes that the Supreme Court majority in Morse v. Frederick — the “Bong Hits 4 Jesus” case decided in June — cautioned that neither Fraser nor Morse should be stretched to include all offensive speech.

Instead of relying on Fraser, Greenaway applied the standards established in the 1969 Supreme Court decision Tinker v. Des Moines Independent County School District. In that case, the Court ruled that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” and that schools can only prohibit speech that is “materially and substantially disruptive.”

Greenaway rejected a further argument by the district that Tinker does not apply to elementary students or that the Tinker test is “relaxed significantly for elementary schools.”

The case dates back to November 2006, when two students at two different schools in the district — fifth-grader Michael DePinto and seventh-grader Anthony LaRocco — wore buttons with a red circle and slash through the words “No School Uniforms.” The words were superimposed over an image of rows of young boys in uniforms. While the image contained no visible swastikas or specific Nazi references, both sides agreed that the picture featured members of the Hitler Youth.

In response, administrators sent letters to the students’ parents warning that their sons would be punished if they continued to wear the button.

Both sets of parents joined in the lawsuit, claiming their children’s First Amendment rights were violated.

Greenaway noted that his ruling was “very narrow” and does not allow the students to distribute the buttons at school. His ruling also stated that the school may act if the buttons become disruptive later.

“All political speech is offensive to someone,” Morgen said. “They’ve said in the Supreme Court that is not a strong enough reason to prohibit students’ expression. So how can you prohibit this button? It’s innocuous.”

By Maggie Beckwith, SPLC staff writer
© 2007 Student Press Law Center
 
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For More Information:
DePinto v. Bayonne Board of Educ., No. 06-05765 (D. N.J. prelim. injunc. granted Sept. 19, 2007).