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The word "scab" is most often used as an insult or epithet. However, the word is also common parlance in labor disputes and has specifically been held to be entitled to the protection of § 7 of the National Labor Relations Act. Buttons containing the word "scab" cannot be considered per se vulgar, lewd, obscene, or plainly offensive that school officials may suppress without a showing that such speech occurred during a school-sponsored event or threatened to substantially interfere with the school's work.
Appellants, high school students and the children of striking school teachers, attended school wearing "scab" buttons with such statements as "Student united for fair settlement." The appellants were asked by school officials to remove the buttons because they were “disruptive.” Subsequently, appellants filed an action in district court, pursuant to 42 U.S.C.S. § 1983, alleging that the school officials’ reasons for requesting the removal of the buttons were false and pretextual, and therefore violated their First Amendment rights to freedom of expression. They stated that the buttons caused no classroom disruption. They further alleged that many of their classmates wore the same buttons, but that none were asked to remove them. Appellants charged that the school singled them out for punishment, in violation of their First Amendment rights to freedom of association, because they led the student protest against the school district's decision to hire replacement teachers. The school district moved to dismiss the complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court granted the motion, stating that the slogans on the buttons were "offensive" and "inherently disruptive." Appellants challenged the decision.
Were the slogans on the buttons "offensive" and "inherently disruptive," thereby warranting the grant of summary judgment in favor of the school officials?
On appeal, the court reversed the dismissal and remanded, holding that the "scab" buttons were improperly suppressed where nothing in the complaint or in the district court's analysis substantiated the conclusion that such buttons were inherently disruptive. The court noted that the word "scab" in the context presented was defined as a worker who accepted employment or replaced a union worker during a strike, and that the word has been specifically held to be entitled to the protection of § 7 of the National Labor Relations Act.