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Second Circuit rules against student in off-campus blog suit, avoids free speech decision
School's actions 'reasonable,' court says
April 25, 2011

CONNECTICUT — The 2nd U.S. Circuit Court of Appeals on Monday ruled that a student did not have a clearly established First Amendment right to criticize school administrators in an off-campus blog.

Former Lewis S. Mills High School student Avery Doninger filed a lawsuit in July 2007, alleging her First Amendment rights were violated when she was punished by principal Karissa Niehoff for an April 24, 2007, Livejournal.com entry that said, “jamfest is cancelled due to douchebags in central office.” Doninger also called on students to voice their opinion to Superintendent Paula Schwartz in order “to piss her off.”

The blog entry was a result of a dispute about the scheduling of a student battle-of-the-bands concert, which was later rescheduled for June. School officials discovered the blog post on May 7, according to court documents. On May 17, when Doninger went to accept her nomination for senior class secretary, Niehoff refused to allow her to run in the election.

“We do not reach the question whether school officials violated Doninger’s First Amendment rights by preventing her from running for Senior Class Secretary. We see no need to decide this question,” according the unanimous three-judge appeals court decision. “We agree with the district court that any First Amendment right allegedly violated here was not clearly established.”

The court held that the school was entitled to immunity from Doninger’s lawsuit over both the blog post and a related T-shirt.

At the election assembly on May 25, 2007, a few students wore T-shirts that said “Support LSM Free Speech” on the back and “Team Avery” on the front. Niehoff made the students take the shirts off, and testified that “she was acting to prevent the wearing of ‘any shirt that [she] felt would cause disruption’ at the assembly.”

Doninger received the most votes in the election through a write-in campaign, but was not permitted to take office.

The U.S. District Court in New Haven denied a preliminary injunction brought during Doninger’s senior year that sought a new election in which Doninger would be allowed to run.

District court judge Mark Kravitz later held that Niehoff and Schwartz were protected by qualified immunity in the punishment of Doninger’s off-campus speech. With regard to the T-shirt, however, Kravitz ruled administrators were not protected from liability.

Qualified immunity is the legal concept that public officials shouldn’t be liable for their actions unless they reasonably should have known their actions were illegal.

The appeals court on Monday partially reversed the lower court, finding that administrators were entitled to qualified immunity on the T-shirt issue as well.

“We agree that a reasonable fact-finder could conclude that Defendants were mistaken in assessing the likely impact of the t-shirts and thus the permissibility of prohibiting them,” according to the Second Circuit opinion. “At the same time, however, we conclude that any such mistake was reasonable.”

The appeals court took 15 months to issue its decision in the case.

Tom Gerarde, attorney for the defendants, praised the opinion, saying Niehoff and Schwartz are “principled, dedicated school leaders.”

“I am pleased that their actions as to Avery Doninger have been vindicated by the Court of Appeals,” he wrote in an email. “The message from the Court is clear and consistent that it will support the actions of school leaders when dealing with conduct that disrupts the educational process, whether that conduct occurs on campus or off campus.”

The Second Circuit also noted that the “‘Supreme Court has yet to speak on the scope of a school’s authority to regulate expression that, like Avery’s, does not occur on school grounds or at a school-sponsored event.’ It is thus incorrect to urge, as Doninger does, that Supreme Court precedent necessarily insulates students from discipline for speech-related activity occurring away from school property, no matter its relation to school affairs or its likelihood of having effects — even substantial and disruptive effects — in school.”

Adam Goldstein, attorney advocate for the Student Press Law Center, said “there’s so much wrong with this decision that it’s hard to pick just one part to criticize.”

It opines that students don't have rights unless those rights are clearly established in light of the school environment, as if students at home didn't possess citizenship,” he said. “Then it declines to actually analyze if such a right exists.”

In a statement, SPLC Executive Director Frank LoMonte said the ruling was inconsistent with the Supreme Court’s landmark decision in Tinker v. Des Moines Independent Community School District. In that case, the Court upheld the right of students to wear black armbands protesting the Vietnam War. However, he also pointed out the limited scope of the Second Circuit’s ruling, which focused on the issue of qualified immunity.

“In one respect, this ruling is a relief and is a great improvement over the district court’s decision,” LoMonte said. “The court was very careful not to address whether Avery Doninger’s First Amendment rights were or were not violated. So no school attorney will be able to advise his client that punishing a student for uncivil remarks on an off-campus blog is a punishable offense.”

Lauren Doninger, Avery’s mother, said she was very disappointed in the ruling and called it a “huge step backward.”

“We’re contemplating our next move,” she said.

Avery Doninger’s attorney, Jon Schoenhorn, said he was disappointed as well.

“It appears that the free speech rights of students are eroding fast, and that the courts are cutting back on [Tinker],” he wrote in an email. “Indeed, it is a sad day for the First Amendment in many respects. We are weighing the options. The decision whether we ask the Court of Appeals to reconsider en banc or petition directly to the Supreme Court, must wait until our attorney-client conference.”

By Aly Brumback, SPLC staff writer

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