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Judge rejects student's blog claim, allows T-shirt issue to proceed

By David L. Hudson Jr.
First Amendment scholar

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 auditorium.

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 official consideration.

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 administrators.”

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 judgment.

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.”

T-shirt claim
Doninger did gain a partial victory when the district court rejected school officials’ claim regarding the censored “Team Avery” T-shirts.

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 grounds.

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.”

2nd Circuit: School can punish teen for online criticism
Students 'may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct "would foreseeably create a risk of substantial disruption within the school environment."' 05.30.08


Conn. teen punished for Internet insult sues school officials

Avery Doninger contends her free-speech rights were violated when she was removed as class secretary for offensive slang posted on blog. 07.18.07

Conn. teen to appeal ruling that OK'd punishment for blog posting
Federal judge upholds administrators' decision to discipline Avery Doninger for derogatory comments she made outside of school. 09.09.07

2nd Circuit considers appeal from teen disciplined for blog post
Lawyer for Connecticut teen argues that what students write on the Internet shouldn't give schools more cause to regulate off-campus speech. 03.06.08

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