'Douchebags' case will go on
High school students and administrators often have very different ideas about what kind of language is appropriate. On school grounds administrators usually have the last word, but questions are being raised when the speech occurs off campus and not on school time.
Such was the case with Avery Doninger, a senior at Lewis S. Mills High School in Connecticut, who filed suit against administrators in July 2007 after she was barred from seeking reelection for class secretary, a position she had held for the past three years.
Doninger was removed from her post and prohibited from running again in May after Karissa Niehoff, the school principal, found an entry Avery wrote on Livejournal.com, an online diary.
In her blog, Doninger wrote about a dispute between school administrators and students over “Jamfest,” a battle of the bands contest that she helped coordinate and plan. Doninger, believing the concert was going to be canceled, wrote it was “due to the douchebags in central office.” Doninger also urged students to write or call Superintendent Paula Schwartz’s office about the event “to piss her off.”
Doninger was banned from running in the May election; she received the most votes in a write-in campaign but was not allowed to take office.
“It would have been easy to say ‘Oh well, it happened get over it,’ but standing up for your rights is very important, it prevents democracy from becoming eroded,” Doninger said.
Avery Doninger’s suit, filed by her mother, Lauren Doninger, on her behalf, sought a preliminary injunction that would mandate a new election at the high school.
U.S. District Court Judge Mark Kravitz denied this request Aug. 31.
Kravitz wrote that “Avery must show a ‘clear’ or ‘substantial’ likelihood of success” because granting the injunction would remove the current class secretary.
The court ruled that she did not have a high likelihood of success of proving that her First Amendment rights had been violated because as a class leader she submitted herself to higher standards than other students. She was barred from running because she violated those standards by using vulgar language, not because the administration wished to punish her for disagreeing with them, Kravitz ruled.
Kravitz also wrote that the court “need not — and does not — decide in this case whether and when a school can suspend, discipline, or remove a student because of the content of a blog or e-mail the student prepared off-campus.”
Christine Chinni, an attorney for the school district, said they believe that Kravitz’s decision was correct. Chinni said she could not comment further due to federal privacy law.
Doninger appealed the district court decision to the 2nd U.S. Circuit Court of Appeals.
Jon L. Schoenhorn, the attorney for the Doningers, told the Student Press Law Center in April that the family is still awaiting a decision from the appeals court, which heard oral arguments in March. The suit seeks an injunction to prevent the school from denying Avery her right to speak at the school’s June 20 graduation as the class secretary.
“They did recognize the urgency of a decision before June,” Schoenhorn said.
Lauren Doninger said she will “definitely” continue to pursue the case, even if no decision is reached by graduation.
Schoenhorn said that a post-graduation decision will still be significant, but the practical benefit to Avery Doninger would be lost. The Doningers’ suit also seeks unspecified compensatory and punitive damages.
“If it is just a damages action the value you place on First Amendment rights is hard to quantify,” Schoenhorn said. “How much is the denial of free speech worth?”
“I am definitely going to be devastated if a decision doesn’t come before my graduation, however, I think that the case should continue no matter what,” Avery Doninger said.
Schoenhorn said the case could have lasting implications for all students.
“The message by the lower court judge, in this case, is no less than students have no rights when they communicate on the Internet if it is disrespectful of authority and is likely to get back to the school,” Schoenhorn said. “It essentially overrules Tinker v. Des Moines, the 40-year-old precedent that is what gives students First Amendment rights.”
Avery said this experience has shown her the value of civic engagement.
“This case isn’t just about me wanting to become my class secretary, there is a way bigger issue involved and that is student speech rights,” Avery Doninger said.
reports, Spring 2008