DePinto v. Bayonne Board of Education

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Case 2:06-cv-05765-JAG-MCA Document 18 Filed 09/19/2007 Page 18 of 28 On the other hand, 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 8 Fraser. Fraser and Kuhlmeier do not apply. Thus, this Court analyzes the speech here under the general rule of Tinker. See Saxe, 240 F.3d at 214. c. Tinker Analysis As stated above, 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 showing. The certifications of Defendants McGeehan, Quinn, and LoRe only assert that differ greatly. While it is unclear whether this Court would so find under Tinker or Fraser (it is eminently more likely that such a symbol would create a disturbance under Tinker), this Court believes that such a display would likely be “plainly offensive” under Fraser; however, the resolution of that dispute is not before this Court. 8 It should be noted that this Court posed a hypothetical during oral argument that the “message” of the Button is that school administrators and supporters of the uniforms were akin to Nazis. (T49:20 to T50:3 (this abbreviation refers to the page and line of the Transcript of the motion hearing held in this case on December 15, 2006).) Such an argument, in this Court’s view, might dictate a different analysis. This message might cross the line drawn in Tinker, forbidding speech which “intrudes upon . . . the rights of other students” or “colli[des] with the rights of other students to be secure and to be let alone.” Tinker, 393 U.S. at 508. Defendants, however, did not avail themselves of this argument and it is not this Court’s business to make those arguments in Defendants’ stead. 18
Case 2:06-cv-05765-JAG-MCA Document 18 Filed 09/19/2007 Page 19 of 28 Defendants, and some faculty and parents, find the Button’s image offensive. (Cert. of Patricia McGeehan (“McGeehan Cert.”) 3; Cert. of Catherine Quinn (“Quinn Cert.”) 2; Cert. of Janice LoRe (“LoRe Cert.”) 2.) Defendants provided no other evidence. Further, as a general matter “[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.’” Chandler, 978 F.2d at 531 (quoting Burnside v. Byars, 363 F.2d 744, 748 (5th Cir. 1966)). 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,” Saxe, 240 F.3d at 211, Defendants’ censorship is unwarranted. Defendants also argue that they do not harm Plaintiffs by prohibiting the image and not the message of the Button, citing to Broussard. (Defs.’ Br. at 16). Defendants argue that Broussard stands for the proposition that “when schools seek to regulate the form of the message rather than the message, they may do so.” Broussard, 801 F. Supp. at 1535 (citing Fraser, 478 U.S. 675). Any other holding, Defendants argue, “would likely lead to chaos.” This Court disagrees. First, the Broussard Court decided to regulate the form of the message under the Fraser standard. The basis of that holding was the determination that a word within the message was vulgar. We have already determined that the image involved in this case is not vulgar or lewd under Fraser. Here, again, this Court finds the Second Circuit’s analysis in Guiles instructive. The school district in Guiles also argued that by only directing that the images be covered, they left 19
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DePinto v. Bayonne Board of Education

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