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`FOR PUBLICATION
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
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`Civil Action No. 06 - 5765 (JAG)
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`OPINION
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`:::::
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`::
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`::::::
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`::
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`LAURA DePINTO, individually abd [sic]
`as Guardian Ad Litem of M.D., a minor,
`and MICHAEL LaROCCO and ROBIN
`LaROCCO, individually and as Guardians
`Ad Litem of A.L., a minor,
`Plaintiffs,
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`
`v.
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`BAYONNE BOARD OF EDUCATION,
`CATHERINE QUINN, JANICE LORE
`and PATRICIA McGEEHAN,
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`Defendants.
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`APPEARANCES:
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`Robert A. Vort, Esq.
`Karin R. White Morgen, Esq.
`Robert A. Vort, LLC
`2 University Plaza
`Hackensack, New Jersey 07601
`For Plaintiffs Laura DePinto, individually and as Guardian Ad Litem of M.D., and Michael
`LaRocco and Robin LaRocco, individually and as Guardians Ad Litem of A.L.
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`Robert J. Merryman, Esq.
`John P. Harrington, Esq.
`Apruzzese, McDermott, Mastro & Murphy, P.C.
`25 Independence Boulevard
`Post Office Box 112
`Liberty Corner, New Jersey 07938
`For Defendants Bayonne Board of Education, Catherine Quinn, Janice LoRe, and Patricia
`McGeehan
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`GREENAWAY, JR., U.S.D.J.
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`This matter comes before the Court on the motion for a preliminary injunction by
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`Plaintiffs Laura DePinto (“DePinto”), individually and as guardian ad litem of M.D., a minor,
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`and Michael and Robin LaRocco (the “LaRoccos”), individually and as guardians ad litem of
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`A.L., a minor (collectively “Plaintiffs”), seeking to enjoin Defendants Bayonne Board of
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`Education (“Bayonne BOE”), Catherine Quinn (“Quinn”), Janice LoRe (“LoRe”) and Patricia
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`McGeehan (“McGeehan”) from imposing sanctions on M.D. and A.L. for wearing a button to
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`school, featuring a photograph of members of the Hitler Youth. For the reasons set forth below,
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`the motion for a preliminary injunction is granted.
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`INTRODUCTION
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`This case is about buttons. Two fifth grade students attending two separate elementary
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`schools in the Bayonne School District (the “District”) wore a button to protest the District’s
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`mandatory uniform policy (the “Button”). The Button bears the phrase “No School Uniforms”
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`and a slashed red circle. The writing overlays a historical photograph that appears to portray the
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`Hitler Youth. The picture depicts dozens of young boys dressed in the same uniforms and all
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`facing the same direction. There are no visible swastikas or any other definitive indication that
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`the boys are members of the Hitler Youth; however, the parties do not appear to contest that the
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`picture portrays an assemblage of the Hitler Youth.
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`Following the days on which M.D. and A.L. wore the Button, the District sent identical
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`letters home to each student’s parents. The letters stated that “[t]he background images on this
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`badge are considered objectionable[,] are offensive to many Bayonne citizens[,] and do not
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`constitute free speech according to Mr. Kenneth Hampton, attorney for the Bayonne Board of
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`Education.” (Verified Complaint Exs. B and C.) The letters threatened suspension in the event
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`that M.D. and A.L. wore the buttons again. The parents of M.D. and A.L. filed this suit alleging
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`violation of the First Amendment right of free speech.
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`DISCUSSION
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`I.
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`Governing Legal Standards
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`A.
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`Standard for Preliminary Injunction
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`The grant of injunctive relief is an “extraordinary remedy, which should be granted only
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`in limited circumstances.” Instant Air Freight Co. v. C. F. Air Freight, Inc., 882 F.2d 797, 800
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`(3d Cir. 1989) (quoting Frank’s GMC Truck Center, Inc. v. General Motors Corp., 847 F.2d 100,
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`102 (3d Cir. 1988)). Generally, in determining whether to grant a preliminary injunction or a
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`temporary restraining order, courts in this Circuit review four factors:
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`(1) whether the movant has a reasonable probability of success on the merits; (2)
`whether the movant will be irreparably harmed by denying the injunction; (3)
`whether there will be greater harm to the nonmoving party if the injunction is
`granted; and (4) whether granting the injunction is in the public interest.
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`Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243, 252 (3d Cir. 2002) (citing
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`Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 171 (3d Cir. 2001)); see also
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`Continental Group, Inc. v. Amoco Chem. Corp., 614 F.2d 351, 356-57 (3d Cir. 1980) (the four
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`factors listed above are known as the Continental factors).
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`The applicant must meet its burden on the first two factors before the Court will consider
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`the third and fourth factors. See Reebok Int’l Ltd. v. J. Baker, Inc., 32 F.3d 1552, 1555-56 (Fed.
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`Cir. 1994) (“Because, irrespective of relative or public harms, a movant must establish both a
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`likelihood of success on the merits and irreparable harm . . ., the district court may deny a
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`3
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`preliminary injunction based on the movant’s failure to establish either of these two crucial
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`factors without making additional findings respecting the other factors.”). “[C]onsideration of
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`these factors by the district court requires a ‘delicate balancing.’” Delaware River Port Auth. v.
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`Transamerican Trailer Transp., Inc., 501 F.2d 917, 920 (3d Cir. 1974). “[T]he district court’s
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`grant or denial of a preliminary injunction will be reversed only for an abuse of discretion.”
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`Delaware River, 501 F.2d at 920; see also Frank Russell Co. v. Wellington Management Co.,
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`LLP, 154 F.3d 97, 101 (3d Cir. 1999) (“A court then balances these four Continental factors to
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`determine if an injunction should issue.”).
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`II.
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`ANALYSIS
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`A.
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`Reasonable Probability of Success on the Merits
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`1.
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`Supreme Court Precedent
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`Since 1988, the basic framework for analyzing First Amendment right to free speech
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`issues within the public school context has been set forth in a trio of cases: Tinker v. Des Moines
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`Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675
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`(1986); and Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988). Most recently, the
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`Supreme Court of the United States revisited this issue in Morse v. Frederick, --- U.S. ----, 127 S.
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`Ct. 2618 (2007).
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`In Tinker, students protested the Vietnam War by wearing black arm bands. In holding
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`that the school district violated the students right to free speech by prohibiting the use of the arm
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`bands, the Court set forth the test for free speech limitation in schools. A student may not be
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`punished for merely expressing views unless the school has reason to believe that the speech or
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`expression will “materially and substantially disrupt the work and discipline of the school.”
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`Tinker, 393 U.S. at 513. Students do not “shed their constitutional rights to freedom of speech or
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`expression at the schoolhouse gate.” Id. at 506. In Tinker, there was “no evidence whatever of
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`petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights
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`of other students to be secure and to be left alone.” Id. at 508. Subsequent Third Circuit
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`precedent makes clear that Tinker requires a “specific and significant fear of disruption, not just
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`some remote apprehension of a disturbance.” Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200,
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`211 (3d Cir. 2001) (Then Circuit Judge Alito wrote for the Court, holding that a school district’s
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`Anti-Harassment Policy was unconstitutionally overbroad under Tinker’s substantial disruption
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`test. The Anti-Harassment Policy prohibited, as summarized by the Saxe Court, any speech
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`which satisfied the elements “(1) verbal or physical conduct (2) that is based on one’s actual or
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`perceived personal characteristics and (3) that has the purpose or effect of either (3a)
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`substantially interfering with the student’s educational performance or (3b) creating an
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`intimidating[,] hostile, or offensive environment.” The Third Circuit held that “3a” complied
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`with Tinker, but that “3b” “appear[ed] to cover substantially more speech than could be
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`prohibited under Tinker . . . .”).
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`The Supreme Court refined its Tinker analysis a generation later, in Fraser. In Fraser, the
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`school district disciplined Matthew Fraser, a high school student, for a speech to an assembly of
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`students, teachers, and administrators, in which he persistently referred to an extended sexual
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`metaphor (although no blatantly sexual words were spoken) viewed by the school administrators
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`as lewd. The School District suspended Fraser for three days, and removed him from a list of
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`candidates for speaker at the school’s commencement ceremony. Fraser, 478 U.S. at 678.
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`Fraser’s Father, as guardian ad litem, brought suit against the school district, alleging violation of
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`Fraser’s First Amendment right to free speech and seeking injunctive and monetary relief under
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`42 U.S.C. § 1983. Id. Citing “society’s interest in teaching students the boundaries of socially
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`proper behavior,” the Court upheld the school’s authority to punish the student. Id. at 681.
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`The Fraser Court reasoned that “it is a highly appropriate function of public school
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`education to prohibit the use of vulgar and offensive terms in public discourse.” Id. at 683. The
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`Court focused on earlier Supreme Court cases, which addressed protecting minors from exposure
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`to “sexually explicit” or “vulgar and offensive” speech. See FCC v. Pacifica Foundation, 438
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`U.S. 726 (1978) (holding that the Federal Communications Commission properly considered
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`George Carlin’s “Filthy Words” monologue as “obscene, indecent or profane” within the
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`meaning of 18 U.S.C. § 1464, while considering the medium’s (radio) availability to minors); see
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`Ginsberg v. New York, 390 U.S. 629 (1968) (upholding a New York statute which banned the
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`sale of explicitly oriented materials to minors, despite the First Amendment protection of those
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`materials for adults).
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`The Fraser Court also distinguished its facts from Tinker because “[u]nlike the sanctions
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`imposed on the students wearing armbands in Tinker, the penalties imposed in this case were
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`unrelated to any political viewpoint.” Fraser, 478 U.S. at 685. The Third Circuit has interpreted
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`Fraser as establishing that “there is no First Amendment protection for ‘lewd,’ ‘vulgar,’
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`‘indecent,’ and ‘plainly offensive’ speech in school.” Saxe, 240 F.3d at 213.1
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` In its most recent opinion on this topic, the Supreme Court noted that it is unclear
`1
`whether the Fraser Court distinguished itself from Tinker because of a) “the ‘marked distinction
`between the political message of the armbands in Tinker and the sexual content of [Fraser’s]
`speech,’” Morse, 127 S. Ct. 2626 (quoting Fraser, 478 U.S. at 680), or b) because “school boards
`have the authority to determine ‘what manner of speech in the classroom or in school assembly is
`inappropriate.’” Morse, 127 S. Ct. at 2626 (quoting Fraser, 478 U.S. at 683).
`Because the Morse Court did not need to “resolve this debate” within Fraser, the Court
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`A second exception arises in the context of school-sponsored activities. In Kuhlmeier,
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`staff members of a high school newspaper sued the school when it refused to publish two
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`articles. The articles addressed “three East Hazelwood [High School] students’ experiences with
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`pregnancy [and] the impact of divorce on students at the school.” Kuhlmeier, 484 U.S. at 263.
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`The school administration imposed its judgment and prevented publication of the articles because
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`a) it was concerned about the secrecy of the identities of the pregnant students; b) the references
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`to sexual activity and birth control were inappropriate for younger students; and c) the parents of
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`a student quoted in the article concerning divorce were not allowed to respond to allegations
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`made in the article. Id. at 263.
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`The Supreme Court reasoned that “educators do not offend the First Amendment by
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`exercising editorial control over the style and content of student speech in school-sponsored
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`expressive activities so long as their actions are reasonably related to legitimate pedagogical
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`concerns.” Id. at 273.2
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`The Second Circuit has recently summarized the holdings of the original three Supreme
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`Court decisions:
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`outlined only the basic principles from Fraser. Id. at 2626. First, Fraser demonstrates that “the
`constitutional rights of students in public school are not automatically coextensive with the rights
`of adults in other settings.” Id. Second, and more importantly for our purposes, Fraser
`established that the “substantial disruption” analysis in Tinker is not absolute. Id. at 2627. In
`other words, there are exceptions to Tinker.
`Because the Supreme Court has acknowledged that Fraser is an exception to Tinker, but
`has not clarified the debate on what that exception is, and because the Third Circuit has not
`specifically ruled on Fraser, this Court will interpret independently the Fraser exception later in
`this opinion. See Section II, A, 2, b, infra, 6-13.
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` This Court addresses Kuhlmeier only briefly because neither party suggests that M.D.
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`and A.L. are wearing the Button in connection with a school-sponsored activity.
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`We distill the following from Tinker, Fraser, and [Kuhlmeier]: (1)
`schools have wide discretion to prohibit speech that is less than
`obscene – to wit, vulgar, lewd, indecent or plainly offensive speech;
`(2) if the speech at issue is “school-sponsored,” educators may censor
`student speech so long as the censorship is “reasonably related to
`legitimate pedagogical concerns”; and (3) for all other speech,
`meaning speech that is neither vulgar, lewd, indecent, or plainly
`offensive under Fraser, nor school-sponsored under [Kuhlmeier], the
`rule of Tinker applies. Schools may not regulate student speech
`unless it would materially and substantially disrupt classwork and
`discipline in the school.
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`Guiles ex rel. Guiles v. Marineau, 461 F.3d 320, 325 (2d Cir. 2006) (citations omitted). This
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`articulation and interpretation is supported by the Third and Ninth Circuits, as well. Chandler v.
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`McMinnville Sch. Dist., 978 F.2d 524, 529 (9th Cir. 1992) (“We have discerned three distinct
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`areas of student speech from the Supreme Court’s school precedents: (1) vulgar, lewd, obscene,
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`and plainly offensive speech, (2) school-sponsored speech, and (3) speech that falls into neither
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`of these categories. We conclude . . . that the standard for reviewing the suppression of vulgar,
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`lewd, obscene, and plainly offensive speech is governed by Fraser, school-sponsored speech by
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`Kuhlmeier, and all other speech by Tinker.”) (citations omitted); Saxe, 240 F.3d at 214 (“To
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`summarize: [u]nder Fraser, a school may categorically prohibit lewd, vulgar or profane language.
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`Under Kuhlmeier, a school may regulate school-sponsored speech . . . . Speech falling outside
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`these categories is subject to Tinker’s general rule . . . .”).
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`The Supreme Court’s recent holding in Frederick v. Morse, does not change this basic
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`framework, or the applicable analyses for the trio. Instead, Morse adds a third exception to
`3
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`Tinker, allowing a school to censor speech that is “reasonably viewed as promoting illegal drug
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` Indeed, Chief Justice Roberts traces Tinker, Fraser, and Kuhlmeier in a similar fashion.
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`See Morse, 127 S. Ct. at 2626-28.
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`use.” Morse, 127 S. Ct. at 2625.
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`In Morse, a student brought suit against the school district when he was punished for
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`displaying a banner which read “Bong HiTS 4 Jesus” during a time when students had been
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`released from classes to watch the Olympic torch relay as it ran through Petitioner’s town. The
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`Supreme Court issued five separate opinions, with Chief Justice Roberts writing the majority
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`opinion.
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`In its analysis, the Morse Court noted that it had, in earlier Fourth Amendment cases in
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`the public school setting, recognized that “deterring drug use by schoolchildren is an ‘important –
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`indeed, perhaps compelling’ interest.” Morse, 127 S. Ct. at 2628 (quoting Vernonia School Dist.
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`47J v. Acton, 515 U.S. 646, 661 (1995)). The Court cited this governmental interest and the
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`“special characteristics of the school environment,” id. (quoting Tinker, 292 U.S. at 506), in
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`holding that school boards may “restrict student expression that they reasonably regard as
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`promoting illegal drug use.” Id. at 2629. The Court rejected expressly a broader rule suggested
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`by the school board in Morse which would have allowed prohibition of the offending banner
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`under Fraser’s “plainly offensive” language analysis. Id. (“We think that [this rule] stretches
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`Fraser too far; that case should not be read to encompass any speech that could fit under some
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`definition of ‘offensive.’”).
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`2.
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`Appropriate Supreme Court Analysis
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`At oral argument, counsel for Plaintiffs argued that this case falls clearly under the Tinker
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`analysis, while counsel for Defendants argued that Fraser governed. This Court agrees with
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`Plaintiffs that this case is governed by Tinker, because the photograph displayed by M.D. and
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`A.L. on the Button is not “vulgar, lewd, obscene [or] plainly offensive,” as set forth in Fraser and
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`highlighted in Morse, and cannot be deemed to be school-sponsored speech.
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`a.
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`Kuhlmeier and Morse Do Not Apply
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`Defendants do not argue that M.D.’s display of the Button is a “school-sponsored”
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`activity under Kuhlmeier. Nor do Defendants argue that the Button could be “reasonably
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`perceive[d] to bear the imprimatur of the school.” Kuhlmeier, 484 U.S. at 271. M.D. wears the
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`Button of his own accord and not in conjunction with any school assignment or extracurricular
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`activity. Kuhlmeier does not apply in this case. Nor does Morse apply, given the absence of any
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`mention, allusion or reference to illegal drug activity.
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`b.
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`Fraser Analysis
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`The majority of cases that this Court located which analyze First Amendment rights in the
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`public school context, do so under the Tinker analysis. However, Defendants cite to several
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`cases which, they believe, analyze student speech under Fraser. See Boroff v. Van Wert City Bd.
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`of Educ., 220 F.3d 465, 470 (6th Cir. 2000) (holding, under the Fraser analysis, that Marilyn
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`Manson T-shirts “contain symbols and words that promote values that are so patently contrary to
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`the school’s educational mission [that] the School has the authority . . . to prohibit those T-
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`shirts”); see Harper ex rel. Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1185-86 (9th Cir.
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`2006) (stating, in dicta, that a public school “may restrict a student from displaying a swastika or
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`a Confederate flag” on a scheduled day of racial tolerance) cert. granted and vacated without
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`opinion, 127 S. Ct. 1484 (Mem.) (2007); see Chandler, 978 F.2d 524 at 529 (holding that buttons
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`worn to protest the school district’s hiring of teachers to substitute for striking teachers and using
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`the term “scab” were not “vulgar or offensive” under Fraser, and, therefore, proceeded to analyze
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`under Tinker); see West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1365-67 (10th Cir.
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`10
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`2000) (denying an injunction sought by the parents of a student who was suspended for drawing
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`a confederate flag in school); see Broussard v. Sch. Bd. of the City of Norfolk, 801 F. Supp.
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`1526, 1537 (E.D. Va. 1992) (holding that the school district did not violate the First Amendment
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`rights of a twelve year-old student by prohibiting her from wearing a t-shirt bearing the message
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`“DRUGS SUCK” because the word “suck” is, in this context, “lewd, vulgar, or offensive”).
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`Defendants argue that these cases stand for the proposition that the photograph of the
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`Hitler Youth is lewd, vulgar, indecent or plainly offensive under Fraser.
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`As an initial matter, this Court notes that West and Harper were decided under the Tinker
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`framework. Harper, 445 F.3d at 1177 n.14 (“Because we decide [plaintiff’s] free speech claim
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`on the basis of Tinker, we need not consider whether his speech was ‘plainly offensive’ under
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`Fraser.”); West, 206 F.3d at 1366 (holding that the school had demonstrated a concrete threat of
`4
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`substantial disruption “based upon recent past events.”) This Court believes the remaining cases,
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`Boroff, Chandler, and Broussard, are less instructive than Guiles ex rel. Guiles v. Marineau, 461
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`F.3d 320 (2d Cir. 2006). 5
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` Additionally, during the pendency of this motion, the Supreme Court granted certiorari
`4
`and vacated the Ninth Circuit’s decision without opinion. Harper ex rel. Harper v. Poway
`Unified Sch. Dist., 127 S. Ct. 1484 (Mem.) (2007) (“In this case, vacatur of the prior judgment is
`also appropriate to ‘clear the path for future relitigation of the issues between the parties and [to]
`eliminat[e] a judgment, review of which was presented through happenstance.”) (quoting
`Anderson v. Green, 513 U.S. 557, 560 (1995)).
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` This Court acknowledges that the holding of Guiles would be different in the post-
`5
`Morse world. The images on the shirt at issue in Guiles depicted, among other things, illegal
`drug use, and would fall arguably under the Morse exception. This change, however, does not
`change the Second Circuit’s analysis of how Fraser should be interpreted. In fact, the Morse
`Court’s decision to not apply Fraser broadly to all “offensive” speech supports the analysis of
`Fraser in Guiles, as opposed to the Sixth Circuit’s interpretation in Boroff.
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`A brief overview of Boroff, Chandler, and Broussard will aid this Court’s analysis. In
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`Boroff, a high school student wore a Marilyn Manson T-shirt to school. Extensive testimony
`6
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`demonstrated that the school district found the Marilyn Manson T-shirts offensive because “the
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`band promotes destructive conduct and demoralizing values that are contrary to the educational
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`mission of the school.” Boroff, 220 F.3d at 469. The school district provided evidence of
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`Marilyn Manson’s lyrics which involved suicide, murder, and racially derogatory terms. Id. at
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`470. The school district also provided magazine articles which portray Marilyn Manson as
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`having a pro-drug persona, admitting drug use, and promoting drug use. Id. at 470. The Court
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`held that “where Boroff’s T-shirts contain symbols and words that promote values that are so
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`patently contrary to the school’s educational mission, the School has the authority, under the
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`circumstances of this case, to prohibit those T-shirts.”
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`In Chandler, several students wore buttons that used the term “scab” to describe substitute
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`teachers who filled in for striking teachers. The Court analyzed the definition of “scab” as it was
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`used on the buttons. The Chandler Court noted that the school district did not prohibit buttons
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`without the word scab, but held that the school district failed to make a showing, in the context
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`of a motion to dismiss, that “scab” should “be considered per se vulgar, lewd, obscene, or plainly
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` As described by the Sixth Circuit, Marilyn Manson
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`6 i
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`s the stage name of ‘goth’ rock performer Brian Warner, and also the name of the
`band in which he is the lead singer. . . . Marilyn Manson (the individual) is popularly
`regarded as worshiper of Satan, which he has denied. He is also widely regarded as
`a user of illegal drugs, which he has not denied.
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`Boroff, 220 F.3d at 467.
`The student’s T-shirt “depicted a three-faced Jesus, accompanied by the words ‘See No
`Truth. Hear No Truth. Speak No Truth.’[, and, on the back of the shirt] the word ‘BELIEVE’
`was spelled out in capital letters, with the letters ‘LIE’ highlighted.” Id.
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`offensive within the meaning of Fraser.” Chandler, 978 F.2d at 530. The Chandler Court
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`continued, stating that
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`“[s]ubsequent proof may show that the word ‘scab’ can reasonably be
`viewed as insulting, and may show that the slogans were directed at
`the replacement teachers. Such evidence would bear upon the issue
`of whether the buttons might reasonably have led school officials to
`forecast substantial disruption to school activities. Mere use of the
`word ‘scab,’ however, does not establish as a matter of law that the
`buttons could be suppressed absent the showing set forth above.”
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`Id. at 531. Ultimately, the Chandler Court did not grant the injunctive relief the school district
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`sought.
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`In Broussard, the case Defendants argue most closely mirrors the facts at hand, a thirteen-
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`year-old middle school student was suspended for wearing a T-shirt bearing the message “Drugs
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`Suck!” in large letters. Broussard, 801 F. Supp. at 1527. The Broussard Court noted that the
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`administrators sought only to suppress the manner in which the message was conveyed, and not
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`the message itself. Thus, “the case concerns only the authority of school officials to regulate
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`language displayed on clothing that they reasonably regard as inappropriate and offensive.” Id. at
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`1534.
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`The District Court analyzed the student’s speech under Fraser, arguing that Fraser
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`presented a balancing test: “the freedom to advocate unpopular and controversial views in
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`schools and classrooms must be balanced against society’s countervailing interest in teaching
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`students the boundaries of socially appropriate behavior.” Id. at 1535 (citing Fraser 478 U.S. at
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`681). After extensive testimony regarding the meaning and sexual connotation of the word
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`“suck,” the District Court found the shirt to be lewd, vulgar, or offensive. Id. at 1537. The Court
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`stated that the school’s determination was not merely “a prudish failure to distinguish the
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`vigorous from the vulgar,” because “the word ‘suck’ does have sexual connotations.” Id. at 1537
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`(citations omitted). The ruling was not appealed to the Fourth Circuit.
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`In Guiles, a Vermont middle school student was warned that he could only wear a shirt
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`bearing a critical caricature of President George W. Bush if he taped over portions of the shirt
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`which depicted illegal drug use and the use of alcohol. Guiles, 461 F.3d at 322-23. The shirt
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`contained large print, reading “George W. Bush, Chicken-Hawk-In-Chief.” Below these letters,
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`a large picture of the President’s face was superimposed over the body of a chicken. The image
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`was surrounded by oil rigs and dollar signs. In one wing, the chicken body holds a straw near
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`three lines of cocaine and a razor blade. The other wing holds a martini glass with an olive in it.
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`The back of the shirt contains similar images and language. “The sleeves of the shirt each depict
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`a military patch, one with a man drinking from a bottle, and the other with a chicken flanked by a
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`bottle and three lines of cocaine with a razor.” Id. at 322.
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`The student wore the shirt approximately once a week for two months with no disruption.
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`On a field trip, however, defendant Marineau determined that the shirt contravened the dress
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`code of the school and gave the student the choice of turning the shirt inside out, taping over the
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`images of drugs and alcohol, or changing shirts. Id. at 323. The student wore the shirt the
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`following day and was disciplined. The student and his parents brought suit in federal court to
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`enjoin the defendants from enforcing the dress code with regard to the shirt. Following a three-
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`day bench trial, the District Court found the images plainly offensive under Fraser. Id.
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`The Second Circuit overturned the District Court, holding that Fraser did not apply and
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`that defendants did not make a sufficient showing of disruption under Tinker. Guiles, 461 F.3d
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`at 330. The Second Circuit held that Fraser’s reach is not so great as to include images of a
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`martini glass, a bottle and a glass, a man drinking from a bottle, and lines of cocaine. Id. at 327.
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`The Second Circuit reasoned that “[l]ewdness, vulgarity, and indecency normally connote
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`sexual innuendo or profanity.” Id. (citing Merriam-Webster’s Third New Int’l Dictionary 1147,
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`1301, 2566 (1st ed. 1981) (defining (a) “lewd” as “inciting to sensual desire or imagination,” (b)
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`“vulgar” as “lewd, obscene or profane in expression,” and (c) “indecent” as “being or tending to
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`be obscene”)). The Circuit concluded that the images on the shirt were not “lewd,” “vulgar,” or
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`“indecent.” Id. The Circuit further reasoned that the sweeping definition of “offensive,” “that
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`which causes displeasure or resentment or is repugnant to accepted decency,” is unlikely to be
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`the definition envisioned by the Fraser Court. Id. at 328. If, in Fraser, the Supreme Court had so
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`intended, “then the rule of Tinker would have no real effect because it could have been said that
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`the school administrators in Tinker found wearing anti-war armbands offensive and repugnant to
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`their sense of patriotism and decency.” Id. at 328.
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`Instead, reasoned the Guiles Court, the Supreme Court intended a narrower definition:
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`“speech that is something less than obscene but related to that concept, that is to say, speech
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`containing sexual innuendo or profanity.” Id. In support of this definition, the Guiles Court cites
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`to the fact that “the cases cited by Fraser all concern vulgarity, obscenity, and profanity.” Id.
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`The decision in Morse does not undercut this analysis of Fraser, despite the fact that the
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`holding in Morse allows prohibition of some portion of the speech addressed in Guiles: speech
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`promoting use of illegal drugs. The Morse Court stated specifically that it did not address the
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`question of the specific meaning of the Fraser exception. Morse, 127 S. Ct. at 2626 (“We need
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`not resolve this debate [as to the mode of analysis in Fraser] to decide this case.”). Arguably, the
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`refusal of the Court to “adopt the broader rule that [school] speech is proscribable because it is
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`plainly ‘offensive’” under Fraser, suggests that the narrow interpretation of Guiles is the correct
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`mode of analysis. See id. at 2629. Instead of interpreting the case before it under Fraser, the
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`Supreme Court chose to carve out a new, independent exception for speech that supports illegal
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`drug use. Thus, the Second Circuit’s interpretation of Fraser in Guiles is still instructive and
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`appropriate for this Court’s consideration.
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`It appears that the Third Circuit, although not addressing the issue directly, is in
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`agreement with the Guiles Court’s interpretation of the Fraser standard. See Saxe, 240 F.3d at
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`213 (noting that “Fraser permits a school to prohibit words that ‘offend for the same reasons that
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`obscenity offends.’”). The Guiles Court also expressly declines to adopt the Sixth Circuit’s
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`position set forth in Boroff, i.e., that “a school has broad authority under Fraser to prohibit
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`speech that is ‘inconsistent with its basic educational mission.’” Guiles, 461 F.3d at 329 (quoting
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`Boroff, 220 F.3d at 470).
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`The Guiles Court concluded that “the images of a martini glass, alcohol, and lines of
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`cocaine . . . may cause school administrators displeasure and could be construed as insulting or in
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`poor taste[, but,] [w]e cannot say . . . that these images, by themselves, are as plainly offensive as
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`the sexually charged speech considered in Fraser nor are they as offensive as profanity used to
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`make a political point.” Id.
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`Broussard and Chandler appear to fall squarely within the Guiles interpretation of “lewd,”
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`“vulgar,” “obscene,” and “plainly offensive.” Broussard, 801 F. Supp. at 1537 (“the word ‘suck’
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`does have sexual connotations”); Chandler, 978 F.2d at 530 (analyzing the term “scab” and
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`declining to apply Fraser). Boroff stands alone in support of Defendants’ argument here for a
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`broad interpretation of Fraser. Further, the Boroff Court’s analysis must now be called into
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`Case 2: