Appeals court won't reinstate Conn. student to class office during free-speech challenge

CONNECTICUT — A federal appellate court’s ruling on Thursday ended a Connecticut high school senior’s effort to be reinstated as a class officer and will prevent her from delivering remarks at the school’s graduation ceremony next month.

The 2nd U.S. Circuit Court of Appeals decision affirmed the district court’s ruling from last August that refused to suspend the imposition of disciplinary sanctions against Avery Doninger for comments she made on the Internet. The school’s principal and superintendent barred Avery from running for class secretary at Lewis S. Mills High School in Burlington, Conn., after she referred to administrators as ”douchebags” on her blog on

Jon L. Schoenhorn, the Doningers’ attorney, said he was extremely disappointed for Avery’s sake with the preliminary ruling, but also worried about the larger implications the decision would have in a newly developing area of law that concerns students’ Internet expression.

”The ruling doesn’t bode well for First Amendment rights in general,” said Schoenhorn. ”If we’re not going to allow students to criticize their administrators, then citizens are going to be afraid to criticize their elected officials.”

The appellate court did not go so far as to say school officials could discipline students for off-campus speech, but it did find that Avery’s post created a ”foreseeable risk of substantial disruption to the work and discipline of the school” because the court said her blog encouraged others to escalate the controversy surrounding the time and location of ”Jamfest,” the school’s annual battle-of-the-bands contest planned by student council.

Avery wrote on the blog that others could contact then-Superintendent Paula Swartz ”to piss her off more” about the conflict, and testified in a preliminary hearing that her posting was intended to encourage people to write and call administrators — an action that could have a foreseeable risk of substantial disruption to the school, the appeals court ruled. The court emphasized that the blog used coarse language and was additionally erroneous: She wrote that the concert had been cancelled when no final decision had been made.

But Martin B. Margulies, a Quinnipiac Law professor emeritus, said he did not think that Avery’s encouragement for numerous phone calls would constitute the ”typical Tinker-style disruption” that could justify limiting student speech. The U.S. Supreme Court recognized in Tinker v. Des Moines Independent Community School District that students were allowed to express themselves freely unless their actions caused a ”material and substantial disruption” of normal school operations or an invasion of the rights of others.

”The disruptions in which the school and ultimately the Second Circuit relied, in my view, were not significant enough to satisfy the traditional Tinker disruption standard,” said Margulies, who filed a friend-of-the-court brief on behalf of the Connecticut-based Center for First Amendment Rights.

In ruling against Avery, the appellate court largely cited Wisniewski v. Board of Education, in which the Second Circuit upheld a school district’s punishment of a student who created a crude instant messenger icon calling for the killing of his teacher. The Supreme Court found the student’s actions in that case could have a foreseeable risk of substantial disruption within the school environment.

Lauren Doninger, Avery’s mother, said her daughter’s case involved very different expression.

”This was a 16-year-old girl trying to figure out how to find her political voice, and she did it clumsily,” she said. ”I think high school should be a training ground for citizenship, and if we squash students’ clumsy attempts at political activism, it is a very dangerous thing.”

Frank LoMonte, executive director of the Student Press Law Center, agreed, saying the decision teaches a terrible civics lesson.

”Avery Doninger was addressing a matter of public concern and was urging citizens to get involved in the matter and contact public officials to try to change a decision that she opposed,” he said. ”That is exactly the type of speech to which courts properly afford the greatest First Amendment protection, and it is disturbing that the Second Circuit treated an attempt to enlist the public in changing the outcome of a government decision as a ‘disruption.”’

The appellate court did not identify Avery’s speech as political.

Thomas Gerarde, who represented the school district, said what was important in the decision was that Avery’s speech was found to be disruptive and also offensive, which he said ”translates to a complete exoneration of the school officials” from any misconduct.

Gerarde said the decision shows that ”any speech that is likely to come to the attention of administrators on campus, even though it’s off campus, will be subject to discipline if it’s disruptive” in the Second Circuit, noting that students’ abilities to ”disrupt” school activities have increased since the creation of the Internet and social-networking Web sites like MySpace and Facebook.

Though any new development in the case will have little practical impact for Avery, who graduates June 20, her mother Lauren Doninger said the family would continue forward with trial to allow a jury to weigh the facts and decide whether the punishment was wrongful.