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Federal appeals court hears oral arguments in Doninger case

January 12, 2010

NEW YORK -- A public school's authority to discipline students for what they say or write "must necessarily be limited to the metes and bounds of school itself," an attorney for a Connecticut student told a federal appeals court today, during arguments in a First Amendment case challenging a school's authority to punish speech on an off-campus blog.

Attorney Jon Schoenhorn told a three-judge federal appeals panel that the principal of Connecticut's Lewis B. Mills High School overstepped the First Amendment in punishing Avery Doninger, then a high school junior, for a coarse remark about administrators on a LiveJournal.com blog.

Although the blog referred collectively to school administrators as "douchebags," Schoenhorn said that term appears regularly on prime-time television and even on the front page of the New York Times, and is simply a youthful slang for "jerk" rather than a vulgarity.

"When students use terms of this sort, they are not obscene or even vulgar," Schoenhorn told judges of the Second U.S. Circuit Court of Appeals.

A U.S. district judge in 2009 found no First Amendment violation in Principal Karissa Niehoff's decision to punish Doninger's commentary, which concerned a dispute over scheduling a battle-of-the-bands concert that Doninger was helping organize. Niehoff penalized Doninger by disqualifying her from running for secretary of the senior class.

The judge applied the Supreme Court's Bethel School District v. Fraser standard, which makes "lewd" speech punishable if it occurs on campus at a school-organized event. Doninger's blog was created at her own expense on a home computer, and there is no evidence that the blog's handful of readers ever viewed it at school.

First Amendment advocates fear that, if not overturned, the lower court's ruling will blur the distinction between off-campus and on-campus speech. The Student Press Law Center filed a friend-of-the-court brief in support of Doninger through volunteer counsel with the Washington, D.C., office of Hunton & Williams LLP, arguing that the ruling endangers the freedom of online student journalists to comment on school issues.

This is the case's second trip to the Second Circuit. At a preliminary stage of the case, applying different legal standards, the judges agreed that the blog punishment was constitutionally permissible. However, the case is now before a new three-judge panel, with only one holdover, Judge Debra Ann Livingston.

The judges pressed the school district's attorney, Thomas R. Gerarde, over whether the blog was factually false in indicating that Niehoff had canceled the band concert. The district judge relied heavily on his view that the blog was false -- the concert was canceled, but with discussions about resurrecting it -- in finding that the speech fell outside of First Amendment protection.

Gerarde conceded that the evidence was in dispute over whether the blog was actually false, but said there was no disputing that the statement was misleading.

The judges spent the bulk of the oral argument on a secondary issue, involving the school's ban on "Team Avery" T-shirts that supporters of Doninger wanted to wear to an election assembly to protest Doninger's disqualification.

The court focused on whether the Supreme Court's landmark student-speech case, Tinker v. Des Moines Community School District -- affirming students' First Amendment rights to wear anti-war armbands in school -- was similar enough to the Doninger case to make it clear that banning the "Team Avery" T-shirts violated the First Amendment. Tinker allows schools to restrict student expression only if it threatens to "substantially" disrupt school functions.

Doninger won on the T-shirt issue at the district court. If the Second Circuit affirms that ruling, then she will be entitled to a trial as to whether the T-shirt ban violated her First Amendment rights.

Gerarde described the prohibition as a spur-of-the-moment judgment that Niehoff was forced to make under pressure: "There are 600 kids filing into the auditorium, and all of a sudden around the corner come the T-shirts, ‘Team Avery,' and she's got to make a call. We don't know, are there 150 of these (shirts), are these the only two?"

Presiding Judge Jose A. Cabranes voiced skepticism that banning the T-shirts had any connection with keeping order at the assembly or protecting the integrity of the election, the two justifications offered by the school.

When Gerarde argued that "what the administration feared is that there would be a sea of ‘Vote for Avery' or ‘Team Avery' T-shirts," Cabranes shot back: "So what?"

"I am having trouble seeing how the wearing of T-shirts is going to cause disruption, much less that it will lead to any particular results in the casting of ballots," Cabranes said.

Gerarde said that part of the school's concern was to prevent students from disrupting the election by casting ballots for Doninger; in fact, a majority of students did write in her name, but their votes were disqualified. But under questioning from the judges, he acknowledged that the school would not take the position that it could punish the casting of a protest vote for Doninger as a disruption.

Gerarde said that the case was unlike Tinker because of the well-publicized blog controversy that preceded the election assembly, making it reasonable for Niehoff to anticipate student unrest.

But Schoenhorn responded that the Des Moines school administrators in the Tinker case also had reason to anticipate unrest -- and the armbands did actually provoke some disputes -- yet the speech was constitutionally protected.

As is customary, the appeals court took the case under advisement and did not indicate when it would rule. Rulings typically take at least six months.

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For More Information:
  • PRESS RELEASE: SPLC files brief in Doninger online speech case News Flash, 9/4/2009

  • Conn. Senate considers Anti-Hazelwood bill News Flash, 3/3/2009

  • Online speech case sparks Conn. lawmaker to propose student expression bill News Flash, 2/6/2009

  • Judge grants qualified immunity to principal in First Amendment 'douchebag' case News Flash, 1/16/2009

  • Doninger to file libel suit against former principal in wake of free speech case News Flash, 1/31/2008

  • Appeals court won't reinstate Conn. student to class office during free-speech challenge News Flash, 5/30/2008

  • Conn. student to continue fight for new election News Flash, 9/10/2007

  • Blogging student leader sues Connecticut school district News Flash, 7/24/2007

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