How far does a school's authority go to regulate student speech?

We got a partial answer to that question a couple of weeks ago in Morse v. Frederick, which seems to allow a great deal of latitude during school-sponsored events in cases of drug-related speech. But even that case seems to be limited, for within days the Supreme Court refused to even hear a case in which a student was held to be within his First Amendment rights to wear a t-shirt mocking the President, even though it did contain depictions of illegal drug use. That would indicate that the Court will look askance at attempts to punish what is clearly political speech.

And, of course, the recent decision does not even get into the issue of the school's ability to punish student speech that happens entirely off-campus, even if it is somehow school related. We may, however, be seeing the genesis of such a case in Connecticut.

A Lewis S. Mills High School student who was barred from running for class office after she called administrators a derogatory term on an Internet blog is accusing top school officials of violating her free speech rights.

Avery Doninger, a senior at the school in Burlington this fall, was removed as class secretary in the controversy last May. She is asking a state judge to order the school superintendent and the principal to reinstate her as secretary of the Class of 2008 and allow her to run for re-election in September.

Lauren Doninger of Burlington, the 16-year-old student's mother, filed a lawsuit Monday on her daughter's behalf in Superior Court in New Britain.

At issue is a comment made on a blog about certain unnamed district officials, who Avery referred to as "douchbags". But the decision to punish her seems to be related to a much deeper issue that directly impinges upon the First Amendment in a rather pristine manner.

On April 24, according to the lawsuit, school officials told Doninger and the other student council officers that a "Jamfest" scheduled for April 28 could not be held in the school auditorium because there was not a staff member available to run new equipment. The event is an annual battle of the bands organized by the student council in which local musicians perform for the community, according to the complaint.

Another student council member sent an electronic mail message that day to high school parents and students, encouraging them to call the school board for Region 10, which covers Harwinton and Burlington, to express support for Jamfest. Doninger was among four students to sign that message, but it was drafted and sent by another student, according to the lawsuit.

When Doninger encountered Niehoff in the school hallway, the principal scolded her for the message and said the superintendent was angered by it and that Jamfest might be canceled, the lawsuit says.

Later that night, about 9:25 p.m., Doninger used her personal computer to post the entry on the blog.

"Jamfest is canceled due to the douchbags in central office. Here is an e-mail that we sent out to a ton of people and asked them to forward to everyone in their address book to help get support for Jamfest," she wrote. "Basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and e-mails and such. We have so much support and we really appreciate it. However, she got pissed off and decided to just cancel the whole thing all [sic] together."

A few weeks later, on May 17, Doninger went to the school office to accept her nomination for class secretary. Niehoff handed a copy of the blog entry to Doninger and told her to apologize to Schwartz, tell her mother about the blog entry, resign as class secretary and withdraw her candidacy, according to the lawsuit.

Avery said she apologized and told her mother, but would not resign or withdraw. Niehoff then dismissed her from the post and barred her from running for the office, according to the lawsuit.

As you can see, part of the issue here is that the campus and district administration took offense at the fact that students would engage in speech to encourage others to petition public officials for a redress of grievances. I've no doubt that Principal Niehoff and Superintendent Schwartz were taken aback that mere students would challenge their authority, and that they were then looking for a way to get back at the student signatories to the email. The problem is that this constitutes the very sort of speech that the First Amendment is intended to protect -- the right of citizens to make their voices heard by public officials.

That Avery Doninger then proceeded to write a blog entry some six hours after the end of the school day, using her own computer in her own home appears significant here. While her subject was a decision by the school to cancel the event, she was again speaking out on a matter of public concern and urging others to engage in lawful conduct to petition school officials for a redress of grievances. Again, that is the use of the First Amendment in a pure and clearly protected fashion -- and even the use of the (misspelled, uncomplimentary, but non-obscene) term "douchbag" does not remove First Amendment protection from her writing (remember Cohens v. California -- even the use of an F-bomb in a political context is ordinarily protected speech).

School officials, in my eyes, have crossed two very bright lines here. First, given the fact that the speech in this case falls in the realm of political speech on a matter of public importance (the operation of a public school and the decisions of public school officials on scheduling/canceling an event), any punishment, including the revocation of what school officials label as a privilege, constitutes an abridgment of freedom of speech.

Second, the fact that the speech for which Avery Doninger is being punished occurred entirely off campus, there is really not a sufficient nexus between it and the school for the administration to even involve itself. If, for example, the student had referred to Hillary Clinton as a "douchbag", could the school have taken action? I think the answer is clearly negative -- and indeed the school would not have tied to do so. Indeed, I'm reasonably confident that no action would have been taken had the young lady "flipped the bird" at a teacher in the parking lot of a local grocery store on a Saturday afternoon. It therefore cannot be said that her lack of respect for school authorities was the basis for her punishment.

No, what you have here is a pair of administrators taking personal offense at being challenged by a student, and choosing to make an example of her. In doing so, they intruded not just upon the student's First Amendment rights, but also upon the right of her mother to to discipline (or not discipline) her for legal activities permitted (or not permitted) in the home. Just as the school cannot impose a 24-hour dress code without violating the rights of the students and the parents, they cannot impose a 24-hour speech code, either. If, as held by the much circumscribed decision in Tinker v. Des Moines, students do not shed their liberties upon entering the schoolyard, the school has an even less pressing interest in regulating those liberties outside of school hours and away from the school grounds. Furthermore, since there was not even a hint of unlawful activity suggested in the blog entry, even the recently approved limits on student rights found in Morse v. Frederick do not seem to be applicable here.

By the way, I'd like to point out that, if the facts are as presented here (and the district seems to confirm them with their response to the suit), I'd argue that Avery Doninger pegged Principal Karissa Niehoff and Superintendent Paula Schwartz just about right. While I would question her use of the term "douchebag", their later actions show that she correctly understands them as power-maddened little totalitarians who fail to understand the limits of their authority and the scope of the First Amendment. They need to remember that Avery Doninger and her peers are students on the cusp of adulthood, not prisoners in a maximum security institution. As such, I'll be following this case closely and hoping to see Niehoff and Schwartz righteously slapped-down by every court in which this case is heard.

Excellent coverage at the case can be found at The Cool Justice Report:
Douche Bag Case In Court
Douche Bag Reprise
Police State Tactics
Principal DB Ducks
Write-In Vote Buried
Who Took The Call
Bill of Rights
Failure To Educate

UPDATE -- 7/18/2007: If the decision discussed in this article provides any guidance, I think that Niehoff, Schwartz, and the district need to get out their checkbooks and prepare to make a substantial contribution to Avery Doninger's college fund. After all, the school sought to punish significantly more disrespectful speech on the internet and was held to violate the student's rights under the First Amendment.

In Layshock, Justin Layshock, a Hermitage, Pa., high school senior, created a profile ridiculing his principal on MySpace. LayshockÂ’s profile was one of four of the principal on the Web site and the least offensive. As word of the profiles spread, school officials tried to block school computersÂ’ access to MySpace and to learn who created the other three profiles. The officials failed in these efforts but ultimately persuaded MySpace to disable the profiles.

During the week before the profiles were disabled, a few students accessed them from school computers and shared them with other students. Officials therefore canceled computer programming classes for five days and otherwise limited student computer use. As a result, several teachers revised lesson plans to convert in-class assignments requiring Internet access to homework and changed Internet research lessons to class discussions. Those discussions did not address the profiles, however, and teachers, following administratorsÂ’ directions, sent about 20 students to the office for mentioning the profiles during class.

After Layshock admitted creating his profile, administrators suspended him for 10 days, placed him in an alternative curriculum, banned him from participating in and attending extracurricular events and prohibited him from participating in the graduation ceremony. His parents then sued, claiming, among other things, that the punishments violated their sonÂ’s First Amendment rights.

McVerry agreed. In ruling for the parents on most aspects of their constitutional claim, McVerry refused to read the decision in Morse as expanding the deference due school officials. Rather, he read Morse narrowly, noting that one of the few things the splintered justices agreed upon was that the banner was school-related speech. Because Layshock did not create his profile at school, McVerry held Morse was “not controlling” of the case.

Given that Avery Doninger was punished over a single word in a post urging members of her community to petition a public official for a redress of grievances, there is no way that applying a similar standard of review to the one in Layshock would permit any punishment to be meted out by the school.

MORE AT ProfsBlawg, Appellate Law & Practice

Posted by: Greg at 09:28 AM | Comments (112) | Add Comment
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