2nd Circuit Rules School Can Punish Teen for Online Criticism of Administrators

A federal appeals court ruled May 29, 2008 that school officials did not violate a Burlington, Conn. high school student’s First Amendment rights in denying her the position of class secretary after a she posted a personal blog entry calling school administrators “douchebags” and encouraging readers to voice their displeasure with them.

The ruling by the 2nd Circuit U.S. Court of Appeals in Doninger v. Niehoff, 527 F.3d 41 (2nd Cir. 2008), upheld a lower court’s denial of a motion for a preliminary injunction that would have reinstated the Lewis Mills High School senior, Avery Doninger, as class secretary, a privilege that included an opportunity to speak at her June 2008 graduation. The court ruled that because Doninger’s “vulgar and misleading” April 2007 blog post about a controversy involving a student council activity “created a foreseeable risk of substantial disruption” at the school, administrators did not violate her First Amendment rights by disqualifying her from running for class secretary.

According to the court opinion, Doninger’s blog post followed a dispute between school administrators and student council members over the scheduling of an annual battle of the bands contest, called “Jamfest.” Student council members were informed April 24, 2007 that the event, which had been planned for April 28, would have to be postponed or its location moved for a third time that school year, due to a scheduling conflict.

Several student council members, including junior class secretary Doninger, composed and sent a mass e-mail to students and their parents saying administrators had said Jamfest could not be held in the school auditorium, requesting support for holding the event as scheduled, and encouraging the e-mail recipients to contact high school principal Karissa Niehoff and then-district superintendent Paula Schwartz to voice their concerns. Niehoff confronted Doninger in the school hallway later that day, saying that she and Schwartz had received an influx of calls about Jamfest, expressing her disapproval of the students’ decision to send a mass e-mail rather than voice their concerns directly to school administrators, and encouraging Doninger and others to send a corrective e-mail, because she was in fact willing to compromise with them on scheduling the event. According to the court opinion, Doninger claims Niehoff also said the event would be cancelled altogether, but Niehoff disputes this.

At home later that night, Doninger posted a message on her publicly-available blog in which she vented her frustration about the controversy, included the text of the mass e-mail sent earlier in the day, and encouraged readers to continue to contact school officials. Although the original post is no longer available online, it was excerpted in the court opinion.

“Jamfest is cancelled due to douchebags in central office,” Doninger wrote. “… Paula Schwartz is getting a TON of phone calls and emails and such. [W]e have so much support and we really appriciate (sic) it. [H]owever, she got pissed off and decided to just cancel the whole thing all together. … And here is a letter my mom sent to Paula [Schwartz] and cc’d Karissa [Niehoff] to get an idea of what to write if you want to write something or call her to piss her off more.”

According to the court opinion, administrators and student council members decided on a new Jamfest date the following day, and administrators admonished student council members that they should not appeal directly to the public when they disapprove of administrators’ decisions. Schwartz and Niehoff did not learn of the blog post until May 2007, according to the opinion, at which point they decided to disqualify Doninger from running for senior class secretary.

Doninger filed suit in July 2007 in state court asserting claims under 42 U.S.C. section 1983 and state law that her rights under the First Amendment and the equal protection clause of the Fourteenth Amendment were violated. The defendants later removed the case to the U.S. District Court for the District of Connecticut because the suit raised questions of federal law. The District Court denied Doninger’s motion for preliminary injunction in August 2007.

In affirming the district court’s ruling in May 2008, a unanimous three-judge panel of the 2nd Circuit said that Doninger’s blog post “contained the sort of language that properly may be prohibited by schools” under the U.S. Supreme Court’s ruling in Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), where it ruled that the constitutional rights of students in public school “are not automatically coextensive with the rights of adults in other settings” and that schools have a responsibility for “teaching students the boundaries of socially appropriate behavior.”

Addressing the fact that Doninger’s blog post did not occur on school grounds or at a school-sponsored event, the court’s opinion, written by Judge Debra Livingstone, relied on a “framework” it set forth in Wisniewski v. Bd. of Educ., 494 F.3d 34 (2nd Cir. 2007) “that a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct would forseeably create a risk of substantial disruption within the school environment, at least when it was similarly foreseeable that the off-campus expression might also reach campus.”

In Wisniewski, the 2nd Circuit found that school officials did not violate an eighth grader’s First Amendment rights in disciplining him for creating and transmitting over the Internet a “crudely drawn icon that depicted and called for the killing of his teacher” because it was “reasonably foreseeable that the icon would come to the attention of school authorities and that it would create a risk of substantial disruption” of school activities. The “substantial disruption” standard, the 2nd Circuit said, came from Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), where the U.S. Supreme Court ruled that school administrators may only prohibit student expression that will “materially and substantially disrupt the work and discipline of the school.”

The court said that not only was Doninger’s blog post likely to reach campus, it was in fact intended to reach campus. As to whether it “foreseeably created a risk of substantial disruption within the school environment,” the court said that the language of Doninger’s blog post was “plainly offensive” and “potentially disruptive of efforts to resolve the controversy.” Moreover, the court said that Doninger’s blog post, which falsely said the event had been cancelled, resulted in a number of disruptions at the school, including an influx of phone calls and e-mails to administrators, students becoming “riled up” and threatening a sit-in protest, and Doninger and other student council members being called out of class to resolve the dispute.

According to the Student Press Law Center (SPLC), Avery Doninger’s mother Lauren has said that in spite of the 2nd Circuit’s ruling on the injunction, the family plans to proceed with a trial to allow a jury to decide whether the punishment was wrong.

SPLC Executive Director Frank LoMonte said in a May 30, 2008 story on the group’s Web site that the decision teaches a terrible civics lesson.

“Avery Doninger was addressing a matter of public concern and was urging citizens to get involved in the matter and contact public officials to try to change a decision that she opposed,” he said. “That is exactly the type of speech to which courts properly afford the greatest First Amendment protection, and it is disturbing that the 2nd Circuit treated an attempt to enlist the public in changing the outcome of a government decision as a ‘disruption.’”

The Hartford Courant (Conn.) reported on May 30 that Doninger’s attorney Jon L. Schoenhorn said the ruling could “emasculate the First Amendment rights of students,” but Thomas R. Gerarde, an attorney for Schwartz and Niehoff, said the rulings by both courts “exonerated” the school district administrators.

In a situation Lauren Doninger told The Courant June 14 she found ironic, Niehoff was later suspended without pay for two days in early June for sharing private information about Avery Doninger via e-mail.

According to The Courant, Niehoff responded to a man from Wisconsin who had sent her a critical e-mail about the Doninger case. In her response, the principal cited specific examples of problems she had with Doninger over her language.

The Courant reported that Lauren Doninger obtained via a state Freedom of Information Act request a June 9 disciplinary letter sent to Niehoff by district superintendent Alan Beitman. In addition to outlining the suspension, the letter also ordered Niehoff to attend workshops or training sessions on federal student privacy law and encouraged her to write a formal apology letter to the Doningers.

Beitman said in the letter that he had “serious concerns regarding what I consider to be an uncharacteristic lapse in judgment,” The Courant reported.

According to The Courant, the Wisconsin man who had sent the e-mail to Niehoff, Mike Morris, had asked, “if it has ever dawned on any of you that your retaliatory action against Avery Doninger constitutes an ironic, prima facie evidence of the truth of her characterization?”

– Patrick File
Silha Fellow and Bulletin Editor



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This page contains a single entry by cla published on October 14, 2009 1:27 PM.

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