DePinto v. Bayonne Board of Education

Case 2:06-cv-05765-JAG-MCA Document 18 Filed 09/19/2007 Page 9 of 28
use.” Morse, 127 S. Ct. at 2625.
In Morse, a student brought suit against the school district when he was punished for
displaying a banner which read “Bong HiTS 4 Jesus” during a time when students had been
released from classes to watch the Olympic torch relay as it ran through Petitioner’s town. The
Supreme Court issued five separate opinions, with Chief Justice Roberts writing the majority
opinion.
In its analysis, the Morse Court noted that it had, in earlier Fourth Amendment cases in
the public school setting, recognized that “deterring drug use by schoolchildren is an ‘important –
indeed, perhaps compelling’ interest.” Morse, 127 S. Ct. at 2628 (quoting Vernonia School Dist.
47J v. Acton, 515 U.S. 646, 661 (1995)). The Court cited this governmental interest and the
“special characteristics of the school environment,” id. (quoting Tinker, 292 U.S. at 506), in
holding that school boards may “restrict student expression that they reasonably regard as
promoting illegal drug use.” Id. at 2629. The Court rejected expressly a broader rule suggested
by the school board in Morse which would have allowed prohibition of the offending banner
under Fraser’s “plainly offensive” language analysis. Id. (“We think that [this rule] stretches
Fraser too far; that case should not be read to encompass any speech that could fit under some
definition of ‘offensive.’”).
2. Appropriate Supreme Court Analysis
At oral argument, counsel for Plaintiffs argued that this case falls clearly under the Tinker
analysis, while counsel for Defendants argued that Fraser governed. This Court agrees with
Plaintiffs that this case is governed by Tinker, because the photograph displayed by M.D. and
A.L. on the Button is not “vulgar, lewd, obscene [or] plainly offensive,” as set forth in Fraser and
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