As "douchebags" case ends, Supreme Court continues to mull off-campus speech rights
It’s the end of the road for Doninger v. Niehoff.
The Supreme Court denied Monday the certiorari petition filed by Avery Doninger’s attorneys, effectively ending three years of legal wrangling in a period that saw the rise of a host of off-campus, online student expression court cases.
Attorney Jon Schoenhorn called the news a “disappointing end” to the case but even more concerning for the larger precedent.
“My biggest concern is that it’s going to chill the free expression of thousands of students because of an erroneous reading of it by school officials,” Schoenhorn said.
As a junior at Connecticut’s Lewis B. Mills High School in 2007, Avery Doninger took to her LiveJournal page to criticize school officials in a dispute over scheduling a battle-of-the-bands concert.
In the blog post, she claimed the “douchebags in central office” had canceled the event.
Principal Karissa Niehoff responded by disqualifying Doninger from running for secretary of her senior class, and from taking office when she won anyway as a write-in candidate.
Fellow students were also prohibited from wearing “Team Avery” T-shirts in support of Doninger.
Earlier this year, a three-judge panel of the 2nd U.S. Circuit Court of Appeals sided with Niehoff and found that school officials were entitled to qualified immunity from Doninger’s lawsuit.
Qualified immunity — a legal doctrine designed to shield public officials from liability when the law is not clearly established — is likely what limited the justices’ interest in this case, Schoenhorn said, adding that no one can ever be sure why the Supreme Court takes or denies cert.
For her part, Lauren Doninger, Avery’s mother, said the outcome is disappointing, but her daughter “has long since moved on.” Avery is in Africa for the year, studying at the University of Botswana and University of Ghana and also volunteering for Relief International.
“She managed without being class secretary,” Lauren Doninger said. “She also managed to prove she’s a very good citizen when she was accused of being a bad citizen.”
Though this case has ended, the larger fight has not, Schoenhorn said.
“I would certainly stress that students should not stop blogging, should not stop protesting and should not stop expressing their free expression on the Internet because of this one bad decision,” he said.
There are, in fact, three other online expression cases before the high court for consideration.
Two cases out of the Third Circuit — J.S. v. Blue Mountain School District and Layshock v. Hermitage School District — involve Pennsylvania high school students who created fake online profiles to mock their principals. Those cases are being appealed together.
Additionally, Kowalski v. Berkeley County Schools comes out of the Fourth Circuit. A senior in 2005 at West Virginia’s Musselman High School, Kara Kowalski was suspended for five days after forming and maintaining a MySpace page on which other students' posts devolved into insults about a classmate. Kowalski claims the page was meant as a discussion forum about promiscuity and herpes, but school officials argue the page was created to ridicule another student who was identified, by name, as having herpes.
That case will be considered at justices’ conference Nov. 22.
Tagged: Off-campus Student Internet Speech