A former Connecticut high school student who was punished for a blog entry
lost her First Amendment claim in federal court over her online speech but won
the ability to pursue another, less-publicized part of her case involving
censorship of student T-shirts at her school.
Avery Doninger’s case has garnered national attention in part because it
presents a fascinating student-speech issue that has not been resolved by the
legal system — what legal standard should a court use to evaluate a
student-speech claim that arises from online speech created off-campus. In
Doninger’s case, on Jan. 15 U.S. District Judge Mark R. Kravitz once again sided
with school officials on the online issue, though he allowed the T-shirt claim
to proceed to trial in his court.
The case began in April 2007 when Doninger — then a junior at Lewis S. Mills
High School in Burlington, Conn. — used offensive language on a blog to
criticize school officials’ handling of JamFest, a battle-of-the-bands event
scheduled for April 28 that had to be delayed until June 2007 because students
were not able to obtain administrative approval to use the school
In an April 24, 2007, blog, Doninger, the junior class secretary, wrote that
a school official “got pissed off and decided to just cancel the whole thing all
together.” She also called Principal Karissa Niehoff “a douchebag.” School
officials punished Doninger by forbidding her to run for senior class secretary.
Doninger sued in July 2007 in state court but the action was removed to federal
court. Doninger sought damages and a new election for secretary.
As part of her claims, Doninger also alleged that she and other students were
prohibited from wearing “Team Avery” T-shirts into the auditorium for Doninger’s
write-in candidacy for senior elective office. Though Avery received more votes
in a write-in campaign than other candidates, school officials barred her from
In August 2007, Kravitz rejected Doninger’s motion for a preliminary
injunction, reasoning in part that “Avery does not have a First Amendment right
to run for a voluntary extracurricular position as a student leader while
engaging in uncivil and offensive communications regarding school
Kravitz wrote then that although he had “more substantial concerns" about the
T-shirts, there was no need to rule on the request for a preliminary injunction
as there was no imminent election on the horizon.
On appeal, a three-judge panel of the 2nd U.S. Circuit Court of Appeals
affirmed the lower court in its May 2008 decision in Doninger
v. Niehoff. The appeals court determined that Doninger should lose her
First Amendment claim because school officials did not violate the standard
articulated by the U.S. Supreme Court in Tinker
v. Des Moines Independent Community School District (1969), which allows
school officials to censor student expression only if they can reasonably
forecast that the student speech will cause a substantial disruption of school
activities or invade the rights of others. The appeals court determined that
“Avery's post created a foreseeable risk of substantial disruption to the work
and discipline of the school.” The 2nd Circuit also characterized Doninger’s
e-mail as “false and misleading.”
The 2nd Circuit did question whether school officials could rely on another
Supreme Court case they cited, the 1986 Bethel
School District v. Fraser, which articulates a more flexible standard in
allowing school officials to censor vulgar and lewd student speech. The 2nd
Circuit questioned whether Fraser "applies to off-campus speech.” The case
involved a student speaking at a school assembly.
The 2nd Circuit did not address the “Team Avery” T-shirt claim.
The case went back to the lower court for more discovery (the process in
which parties in a case try to obtain information from the other side). Both
sides moved for summary judgment and on Jan. 15, Kravitz ruled in favor of the
school officials on the blog claim.
Online, off-campus speech issue
Doninger had argued before Kravitz
that new evidence uncovered during discovery cast doubt on whether her blog
entry caused any type of disruption and whether it was false or misleading. She
also contended that school officials punished her only because they found some
of her language offensive, not because there was any disruption.
Kravitz acknowledged “that there is evidence in the record — particularly
when viewed in the light most favorable to [Doninger] — that suggests that Ms.
Niehoff may have punished Ms. Doninger because the blog entry was offensive and
uncivil and not because of any potential disruption at school.” Kravitiz
suggested that the dispute over the true motivation for punishing Doninger
created a fact question that ordinarily would prevent the granting of summary
However, the judge still ruled for school officials because of the doctrine
of qualified immunity, which shields government officials from liability even
for unconstitutional actions if they have not violated clearly established
constitutional or statutory law.
Kravitz said the issue of student online speech was not clearly established,
as the courts are in disagreement over which legal standard — Tinker,
Fraser or something else — to apply. He also said that “it is not at all
clear that participation in extracurricular activities should be considered a
right at all.”
Doninger had argued that a 30-year-old 2nd Circuit decision, Thomas v.
Board of Education (1979), established a First Amendment right to write off
campus. Thomas involved an underground student newspaper, distribution of which
New York-based school officials unsuccessfully tried to prevent. But school
officials pointed to other decisions that allowed schools to punish students for
off-campus online speech.
“We are not living in the same world that existed in 1979,” Kravitz wrote.
“The students in Thomas were writing articles for an obscene publication on a
typewriter and handing out copies after school. Today, students are connected to
each other through e-mail, instant messaging, blogs, social networking sites,
and text messages. An e-mail can be sent to dozens or hundreds of other students
by hitting ‘send.’ … Off-campus speech can become on-campus speech with the
click of a mouse.”
Kravitz also noted that legal commentators in various law journals had
observed a lack of consistent legal authority over how to evaluate off-campus,
online student expression.
“If courts and legal scholars cannot discern the contours of First Amendment
protections for student internet speech, then it is certainly unreasonable to
expect school administrators, such as Defendants, to predict where the line will
be drawn in this new digital era.”
Doninger did gain a partial victory when the district
court rejected school officials’ claim regarding the censored “Team Avery”
School officials had argued that they were simply enforcing a “general ban on
electioneering materials” rather than censoring a particular political viewpoint
— the support of Avery Doninger. But Kravitz wrote: “It is undisputed that there
was no written policy that would have prohibited the t-shirts and there is no
evidence that Ms. Niehoff was confiscating any other electioneering materials at
the doors to the school auditorium.”
The judge also noted that because school officials had barred Avery from
running for office, it was wrong to characterize the T-shirts as electioneering
materials in the first place. Kravitz further rejected the qualified-immunity
defense on this claim, because it was clearly established that students had a
right to engage in nondisruptive, nonoffensive political speech on school
Kravitz wrote: “At trial, Ms. Doninger will have to prove that her speech was
chilled and also will have to prove the amount of damages, if any, that she
suffered as a result of any First Amdendment violation that is found.”