Second Circuit rules against student in off-campus blog suit, avoids free speech decision

CONNECTICUT — The2nd U.S. Circuit Court of Appeals on Monday ruled that a student did not have aclearly established First Amendment right to criticize school administrators inan off-campus blog.

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

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

“We do not reach the question whether school officialsviolated Doninger’s First Amendment rights by preventing her from running forSenior Class Secretary. We see no need to decide this question,” according theunanimous three-judge appeals court decision. “We agree with the district courtthat any First Amendment right allegedly violated here was not clearlyestablished.”

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

At the election assembly on May 25, 2007, a few studentswore 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 wouldcause disruption’ at the assembly.”

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

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

District court judge Mark Kravitz later held that Niehoffand Schwartz were protected by qualified immunity in the punishment ofDoninger’s off-campus speech. With regard to the T-shirt, however, Kravitz ruledadministrators were not protected from liability.

Qualified immunity is the legal concept that publicofficials shouldn’t be liable for their actions unless they reasonably shouldhave known their actions were illegal.

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

“We agree that a reasonable fact-finder could conclude thatDefendants were mistaken in assessing the likely impact of the t-shirts andthus the permissibility of prohibiting them,” according to the Second Circuitopinion. “At the same time, however, we conclude that any such mistake wasreasonable.”

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

Tom Gerarde, attorney for the defendants, praised theopinion, saying Niehoff and Schwartz are “principled, dedicated schoolleaders.”

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

The Second Circuit also noted that the “‘Supreme Court hasyet 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 precedentnecessarily insulates students from discipline for speech-related activityoccurring away from school property, no matter its relation to school affairsor its likelihood of having effects — even substantial and disruptive effects —in school.”

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

It opines that students don’t have rights unless those rights areclearly established in light of the school environment, as if students at homedidn’t possess citizenship,” he said. “Then it declines to actually analyze ifsuch a right exists.”

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

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

Lauren Doninger, Avery’s mother, said she was verydisappointed 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 wasdisappointed as well.

“It appears that the free speech rights of students areeroding 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 weighingthe options. The decision whether we ask the Court of Appeals toreconsider en banc or petition directly to the Supreme Court, must wait untilour attorney-client conference.”