Federal appeals court hears oral arguments in Doninger case

NEW YORK — A public school’s authority to discipline studentsfor what they say or write “must necessarily be limited to the metes andbounds of school itself,” an attorney for a Connecticut student told afederal appeals court today, during arguments in a First Amendment casechallenging a school’s authority to punish speech on an off-campusblog.

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

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

“When students use terms of this sort, they are not obscene or evenvulgar,” Schoenhorn told judges of the Second U.S. Circuit Court ofAppeals.

A U.S. district judge in 2009 found no First Amendment violation inPrincipal Karissa Niehoff’s decision to punish Doninger’scommentary, which concerned a dispute over scheduling a battle-of-the-bandsconcert that Doninger was helping organize. Niehoff penalized Doninger bydisqualifying 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 itoccurs on campus at a school-organized event. Doninger’s blog was createdat her own expense on a home computer, and there is no evidence that theblog’s handful of readers ever viewed it at school.

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

This is the case’s second trip to the Second Circuit. At apreliminary stage of the case, applying different legal standards, the judgesagreed that the blog punishment was constitutionally permissible. However, thecase is now before a new three-judge panel, with only one holdover, Judge DebraAnn Livingston.

The judges pressed the school district’s attorney, Thomas R. Gerarde,over whether the blog was factually false in indicating that Niehoff hadcanceled the band concert. The district judge relied heavily on his view thatthe blog was false — the concert was canceled, but with discussions aboutresurrecting it — in finding that the speech fell outside of FirstAmendment protection.

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

The judges spent the bulk of the oral argument on a secondary issue,involving the school’s ban on “Team Avery” T-shirts thatsupporters of Doninger wanted to wear to an election assembly to protestDoninger’s disqualification.

The court focused on whether the Supreme Court’s landmarkstudent-speech case, Tinker v. Des Moines Community School District— affirming students’ First Amendment rights to wear anti-wararmbands in school — was similar enough to the Doninger case to make itclear that banning the “Team Avery” T-shirts violated the FirstAmendment. Tinker allows schools to restrict student expression only ifit threatens to “substantially” disrupt school functions.

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

Gerarde described the prohibition as a spur-of-the-moment judgment thatNiehoff was forced to make under pressure: “There are 600 kids filing intothe 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’tknow, are there 150 of these (shirts), are these the only two?”

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

When Gerarde argued that “what the administration feared is thatthere 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 tocause disruption, much less that it will lead to any particular results in thecasting of ballots,” Cabranes said.

Gerarde said that part of the school’s concern was to preventstudents 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 nottake the position that it could punish the casting of a protest vote forDoninger as a disruption.

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

But Schoenhorn responded that the Des Moines school administrators in theTinker case also had reason to anticipate unrest — and the armbandsdid actually provoke some disputes — yet the speech was constitutionallyprotected.

As is customary, the appeals court took the case under advisement and didnot indicate when it would rule. Rulings typically take at least sixmonths.