Conn. student to continue fight for new election

CONNECTICUT — A student who was barred from running for class office after calling administrators “douchebags” on her blog did not show that she was likely to win her case, a federal judge ruled Aug. 31 in refusing to order a new election.

The U.S. District Court in New Haven denied Avery Doninger’s request for a preliminary injunction that would mandate another election at Lewis S. Mills High School in Burlington, Conn., and allow Doninger to seek reelection for class secretary. Administrators excluded her from the election at the end of last school year because of “vulgar” comments made from her home computer on

Jon L. Schoenhorn, the Doningers’ lawyer, said the Doningers plan to appeal the decision.

“We’ve lost the first round,” he said, “but there will be others.”

The ruling emphasized that Doninger’s only punishment was exclusion from the secretary election. Judge Mark Kravitz wrote that the case did “not decide whether and when a school can suspend, discipline, or remove a student because of the content of a blog or email prepared off-campus.”

But Kravitz said that while Avery is free to state her opinion about the school administration, she “does not have a First Amendment right to run for a voluntary extracurricular position as a student leader while engaging in uncivil and offensive communications regarding school administrators.”

Avery’s mother, Lauren Doninger, said she believes administrators overstepped their boundaries.

“They had no right to punish her for what she said at home — that’s up to me,” she said. “I didn’t like the language she used, but free speech doesn’t require that everyone use sophisticated speech.”

The controversy stemmed from a dispute between administrators and students over the time and location of “Jamfest,” the school’s battle of the bands contest. Administrators told students they would have to either change the day of the concert or move the location from the auditorium to the cafeteria.

Avery posted on her blog entry that the concert was cancelled due to the “douchebags in central office” and she urged students and community members to flood Superintendent Paula Schwartz’s office with calls and e-mails “to piss her off.”

Jamfest was successfully held in the auditorium in June.

As punishment for her comments, Avery 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.

Avery’s backers wore shirts to school on election day that read “Team Avery” on the front and “Support LSM Freedom of Speech on the back.” The principal, Karissa Niehoff, allowed students to wear the shirts during the day, but made students remove or cover them up before entering the auditorium to hear candidates’ speeches.

According to court documents, Niehoff said she did not want to allow any electioneering materials into the auditorium because it might unfairly prejudice students who lacked advertising resources. But the Doningers asserted in their lawsuit that Niehoff’s actions were another breach of students’ rights.

Kravitz wrote that not allowing students to wear these shirts to the election day speeches as part of their “silent protest” caused the court “substantial concerns,” but because the ruling denied Avery’s request for a new election, the court declined to rule on the Doningers’ claims regarding the T-shirts.

The school district’s attorney, Chris Chinni, said the district was pleased with the ruling and that the judge interpreted the law correctly.

“We hope the student and the school district can both move on and go ahead with the school year,” she said.

Avery is keeping busy but is “absolutely nervous” about being back for the new school year, her mother said.

“She is so careful online now, saving conversations,” Lauren Doninger said. “If it can get back to the school, it will be considered school speech.”

Schoenhorn said the judge relied too heavily on Bethel School District v. Fraser, a 1986 U.S. Supreme Court case that upheld a high school’s decision to punish a student for using sexual innuendo in a speech in the school’s auditorium. Because the Doninger case involves speech made away from school grounds, it should not follow the Fraser precedent, Shoenhorn said.

Kravitz’s ruling cited Fraser in noting that schools are responsible for “teaching students the values of civility and respect for the dignity of others.”

Avery’s speech, he said, was created off-campus but was purposely designed to come onto the campus because it was related to school issues.

If the decision stands, Schoenhorn said it would be “the first nail in the coffin” for student First Amendment rights.

“The old rules about in school or out of school would be out the window,” he said. “Anything said anywhere — the Internet, on the radio, an underground newspaper could be punished. If this judge is correct, students no longer have First Amendment rights.”

For More Information:

Doninger v. Niehoff, No. 07-01129, 2007 WL 2523753 (D. Conn. Aug. 31, 2007).