Court Protects Nazi Harassers

School officials upheld in barring gay student from wearing “tolerance patch”

U.S. District Judge Steven McAuliffe ruled on March 15 that school administrators in New Hampshire did not violate the constitutional rights of Paul Hendrickson Jr., an 18-year-old, openly gay student at Kingswood Regional High School, when they suspended him for refusing to remove a “tolerance patch” from his clothing.

Hendrickson was one of several gay students at the school who wore the patches in response to being verbally harassed by another group of students who described themselves as “rednecks” who admire Adolf Hitler. The patches consisted of “a swastika on which was superimposed the international “no” symbol—a red circle with a diagonal line through it.” According to McAuliffe, although the gay students called this a “tolerance patch,” “it might be more objectively described as a ‘No Nazis’ patch.”

When school administrators found out about the patches, they summoned Hendrickson and other gay students to the principal’s office and told them they would have to remove them because they might provoke disorder. Other gay students complied, but Hendrickson insisted on wearing the patch and was sent home to think it over. When Hendrickson said he would not return to school without the patch, he was suspended and the school arranged to provide tutoring for him at home.

The school district filed a lawsuit against Hendrickson and his parents, “wishing to resolve the conflict and clarify its legal obligations and responsibilities.” Hendrickson responded to the lawsuit by filing a counterclaim for injunctive relief and damages against school officials.

“Disputes like this one are often more complicated than they first appear,” wrote McAuliffe, “and that is certainly the case here. One’s initial reaction to the very basic facts… might well be that the student is, of course, entitled to express a political viewpoint at school by passively wearing a symbolic patch… But the basic facts do not begin to tell the whole story… A balancing of interests is required, and striking the proper balance can be difficult.”

McAuliffe concluded that the patches were an “in your face” provocation to the so-called “reckneck” student group, calculated to stimulate a response that could be disruptive to the school’s educational program. Indeed, he asserted, it was “naive” to call them “tolerance” patches, since they directly communicated intolerance to the redneck group.

More significantly, McAuliffe pointed out that the Supreme Court decisions about the role of the First Amendment in public high schools make clear that the free speech rights of students need to be balanced against the school’s legitimate interest in preserving its educational mission against disruption. If school administrators had a reasonable basis for believing that allowing students to wear the patches was likely to result in disorder, possibly even violence, at the school, they were entitled to demand their removal and to impose a suspension on the recalcitrant Hendrickson.

McAuliffe found that under the totality of the circumstances the school officials acted reasonably. He noted that there had been an escalation of verbal confrontations between the gay students and the rednecks, which included telephoned threats of violence, and which had required administrators to intervene and involve the parents of students. School officials nationwide, he wrote, were on edge due to incidents in which students had murdered fellow students or teachers in gun violence. He concluded the administrators’ actions were reasonable, even if that could be construed as suppressing free expression of political views.

McAuliffe cited an affidavit from the school superintendent about a meeting at which Hendrickson, told that his patch could lead to physical confrontations, said that he “wanted to get into their faces” and that if a physical confrontation with the redneck group did occur, “he would be prepared to take action against them.”

McAuliffe wrote that Hendrickson could not claim he was the victim of viewpoint discrimination, because the school administrators did not disagree with his opposition to Nazism, but were acting solely because of their fears of disruption. McAuliffe also credited the school district’s argument that Hendrickson’s patch communicated a message of disapproval and confrontation rather than “tolerance,” saying to rednecks, “You are Nazis, and I am opposed to your being in this school.” “At least,” wrote McAuliffe, “it could reasonably be construed as communicating that or a substantively similar message. As the School District puts it:… ‘It is a message of intolerance, a message of hate and dislike, that targeted other students. It was spiteful and aggressive toward another group of students’”

While noting that “most people living in a democratic society, particularly those whose countries went to war to defeat the Nazi regime, would probably enthusiastically join in affirming identical opposition,” McAuliffe concluded that these were not ordinary circumstances, in light of the tensions that had built up at the school between the gay students and the rednecks, and that the sudden appearance of the patches could rightly be seen by them as a deliberate provocation by the gay students that might defeat peacemaking efforts at the school.

McAuliffe found that no First Amendment violation had taken place.

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