Sypniewski: Demand letter on behalf of Thomas Sypniewski

May 29, 2001

Mr. Peter Merluzzi
Superintendent of Schools
Warren Hills Regional School District
89 Bowerstown Road
Washington, New Jersey 07882

Dear Mr. Merluzzi:

This firm has been retained by Thomas Sypniewski, Jr., and his family, as co-counsel with The Center for Individual Rights, in connection with the disciplinary findings made and sanctions that you, on behalf of the Board of Education of the Warren Hills School District (“Board”), recently imposed on him.

The Board’s actions violated Mr. Sypniewski’s constitutional rights and placed him in a false light, all of which caused him substantial injury. We write, on behalf of Mr. Sypniewski, to request that you take prompt corrective action, as specified below, absent which we shall have no choice but to seek appropriate legal redress.

At the outset, we emphasize that we, as well as Mr. Sypniewski and his family, applaud the goals which the Board claimed to further by its action against Mr. Sypniewski: the eradication of racial harassment and intimidation of other students. But there is a proper lawful manner to further that goal, consistent with both the United States and New Jersey Constitutions, with particular reference to the First Amendment to the United States Constitution, and with the school’s duty not to unfairly and falsely publicly label Mr. Sypniewski as a racist. For your convenience and consideration, we outline some of the reasons that the Board’s action was unlawful.

Both the Dress Code and the Racial Harassment Policy, as adopted by the Board, are each unconstitutional on their face.

In that regard, the Board’s Dress Code states, among other things, that clothing “is considered inappropriate for school” if it “portray[s] racial, ethnic, or religious stereotyping.” This language is overbroad and vague, in that it could be applied to cover a large number of communications that are constitutionally protected. For example, literally construed, the Dress Code would prohibit T-shirts communicating “Black is Beautiful” or “Malcolm X is a Black Hero” as racial stereotyping.

As the United States Supreme Court has stated, “[c]learly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.” Tinker v. Des Moines Independent School District.393 U.S. 503, 511 (1969). Directly applicable and controlling here is the recent holding of the Court of Appeals for the Third Circuit – which includes New Jersey – that “plainly offensive” speech which might be susceptible to lawful prohibitions, reaches only speech that is offensive because of its “mode of expression, not its content or viewpoint.” Saxe v. State College Area School District, 240 F-3d 200, 213 (3d Cir. 2001). Further, that Court made clear that a school’s power to restrict otherwise protected speech is limited to speech which “would substantially disrupt school operations,” id. at 214, and creates “a specific and significant fear of disruption, not just some remote apprehension of disturbance.” Id. at 212. Thus, even “‘negative’ or ‘derogatory’ speech about such contentious issues as ‘racial customs,’ ‘religious tradition,’ ‘language,’ … is within a student’s First Amendment Rights” “when it does not pose a realistic threat of substantial disruption.” Id. at 217. Restrictions on such speech cannot be made constitutional merely on the bald assertion that the speech is “inappropriate” or somehow violates the rights of other students. Id. The Board’s Dress Code, on its face, ignores these essential elements of any lawful dress code and is thus unconstitutional.

Nor does the School Board’s practice of targeting “offensive” communications comply with the First Amendment. Whether a communication is “offensive” makes for poor constitutional guidance. Rather, as the Supreme Court held in Tinker. 393 U.S. at 509:

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” the prohibition cannot be sustained.

Likewise, the Board’s Racial Harassment Policy ignores these elements essential to any such Policy. See, e.g., Dambrot v. Central Michigan University. 55 F.3d 1177 (6th Cir. 1995) (holding unconstitutional a racial harassment code that banned speech that “inferred [sic] negative connotations about the individual’s racial or ethnic affiliation”); Doe v. University of Michigan. 721 F.Supp. 852 (E.D. Midi. 1989) (holding unconstitutional a racial harassment code that banned speech that “stigmatizes or victimizes” students based on their race”). The Board’s Racial Harassment Policy, which proscribes any message “that is racially divisive or creates ill will or hatred,” is a fortiori unconstitutional as written.

The vague and unconstitutionally subjective nature of these codes is exemplified by the recent inconsistent treatment of a bumper sticker on a student car that read “Discourage inbreeding – Ban Country music;” one of the high school’s security guards found nothing offensive about it, while only days later, two other security guards stated that they did find the sticker offensive, and forced the owner of the car to remove it. Similarly, the very “redneck” T-shirt for which Mr. Sypniewski was sanctioned was worn by a student in another school, carefully scrutinized by an administrator in that school, and passed as not a violation of the Board’s code. Indeed, we understand that that administrator consulted with you before ruling that the T-shirt was not violative of any school code, and that you concurred – and this occurred the day after Mr. Sypniewski was sanctioned.

In addition to being unconstitutional on their face, both Codes are unconstitutional as applied lo Mr. Sypniewski.

The Dress Code specifies that disciplinary action may be taken against a student ‘Svhere there is evidence that inappropriate dress causes disruption in the classroom.” However, there was no evidence that Mr. Sypniewski’s T-shirt caused disruption in any classroom when he was suspended. Indeed, the evidence was that he had worn this T-shirt previously – and other students had worn the same T-shirt – without any evidence of a resulting disruption or any racial abuse by anyone wearing the T-shirt. Moreover, these T-shirts – we are informed thousands of them – had been sold by the national Wal-Mart stores, without any evidence of disruption anywhere in the country. Indeed, the fact that Wal-Mart sold these T-shirts without any apparent objection from ever-watchful civil rights organizations is particularly significant, given that Wal-Mart would never want to create even a possibility of disparagement of African-Americans who form a material part of Wal-Mart’s customer base. Likewise, the term “redneck” has been used in leading national newspapers that would be reluctant to print a racial slur, and even by rural politicians who, although they solicit black votes, describe themselves as “redneck.” See, e.g., Washington Post, May 6, 2001, at C1.

In addition, the Board’s determination that the term “redneck” portrays “racial, ethnic, or religious stereotyping” which is “harassment and verbal abuse of students of African American origin” is without any factual basis. No reasonable person could conclude that “top 10 reasons why you might be a redneck sports fan” is any way verbal abuse of African-Americans (even if such a test were constitutional), particularly given the specified ten reasons which have nothing to do with race. In fact, in Mr. Sypniewski’s wearing this T-shirt, the “message” he was conveying was a celebration of an outdoorsy, country-music loving, hunter and fisherman – all of which he enjoys – an all-American message.

In actuality, any racially discriminatory stereotyping was done by the Board. It is as unacceptable to assert that all rednecks – which describes those who work in the fields in the south – are bigoted as to describe all African-Americans as having a quality or defect because some African-Americans, in slang, are said to have such qualities or defects. Not every honest, hard-working southern farm worker – the basic definition of redneck – is a bigot and the Board statements to the contrary are unacceptable racially discriminatory stereotyping of those hard-working southern farm workers.

Beyond the unconstitutionality of the Board’s action, the Board’s public statements disparaged Mr. Sypniewski by falsely painting him as a racist. And the Board’s conduct makes clear that the Board, to make an example of Mr. Sypniewski in order to deter other students from questioning the school administrators’ decisions and from attempting to exercise constitutional rights, intentionally disseminated publicly this defamatory and fake attack on Mr. Sypniewski. For that purpose, the Board unexplainably distributed its decision on his appeal before advising Mr. Sypniewski and his family of that decision – so that the first notice to the Sypniewski family of that decision came from the press seeking their comments.

While the harm the Board has done to Mr. Sypniewski can never be fully corrected and remedied, the following is, at a minimum, required:

1. expunge all mention of the asserted violation and suspension from Mr.
   Sypniewski school records;2. restore to Mr. Sypniewski all the rights and privileges associated with being a student in good standing in the Warren Hills Regional High School, including parking privileges and the right to forego final examinations;
2. issue a public apology to Mr. Sypniewski and his family, including a recognition that his conduct was not a violation of any constitutional governing code and an express statement that there is no basis to believe that he is a racist;
3. affirm that Brian and Matthew Sypniewski may continue wearing their own “Redneck Sports Fan” T-shirts without disciplinary action being taken against them; and
4. suspend enforcement of the Dress Code and of the Racial Harassment Policy until they have been revised to comply with First Amendment law.

We are willing to discuss the implementation of the above. But, it is imperative that Mr. Sypniewski graduate without this false defamation on his record. Accordingly, if you fail to advise us by June 4, 2001 that the Board agrees to these corrective actions, our client has instructed us to seek judicial relief by filing an appropriate complaint in federal court seeking a judicial remedy including the above specified relief, as well as compensatory and punitive damages.

If you have any questions, please call us.

Very truly yours,

Rosemnan & Colin LLP

by
Gerald Walpin
Gilly Nadel

cc: Center for Individual Rights
Mr. Thomas Sypniewski, Jr.
Mr. & Mrs. Thomas Sypniewski