In yet another expansion of the regulation of student speech, the Second Circuit has ruled against high school student Avery Doninger who contested her punishment for posting an objectionable message on an Internet site about Lewis Mills High School. When she objected to the cancellation of a school event in vulgar terms, school officials barred her from running for Senior Class secretary. In Doninger v. Niehoff, the Second Circuit upheld the right of school officials to punish students for out-of–school speech in a major blow to both the first amendment and student rights.
The primary connection to the school resources was the use of a school computer to access Doninger’s Dad’s account. They sent out an email informing the broader community of the decision to cancel the date for the “Jamfest.” They were successful. Various people called the Paula Schwartz, the district superintendent, and the principal Karissa Niehoff. Doninger says that Niehoff told her that she was upset by a call from Schwartz, though the district court accepted Niehoff’s denial that she mentioned Schwartz. They agree that Niehoff told her not to send such emails and that she could be punished under a rule that students must “demonstrat[e] qualities of good citizenship at all times.”
Doninger was not deterred and went home and sent the email that led to the punishment. The blog post began as follows:
jamfest is cancelled due to douchebags in central office. here is an email that we sent to a ton of people and asked them to forward to everyone in their address book to help get support for jamfest. basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and emails and such. we have so much support and we really appriciate it. however, she got pissed off and decided to just cancel the whole thing all together. anddd so basically we aren’t going to have it at all, but in the slightest chance we do it is going to be after the talent show on may 18th. andd..here is the letter we sent out to parents.
The post then reproduced the email that the Student Council members sent that morning.
And here is a letter my mom sent to Paula [Schwartz] and cc’d Karissa [Niehoff] to get an idea of what to write if you want to write something or call her to piss her off more. im down.
While federal courts routinely state that students do not “shed their
8 constitutional rights to freedom of speech or expression at the schoolhouse gate,” Tinker v. Des
9 Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969), they honor that rule primarily in the breach. There has been a steady eradication of student rights from mandatory drug testing to school searches to punishment for writings in newspapers and out-of-school activities. Circuit judges Sotomayor, Livingston, and district judge Preska (sitting by designation) follow this troubling trend. They rely on the equally wrong-decided case of Morse v. Frederick, 551 U.S. —, 127 S. Ct. 2618, 2622, 2629 (2007), the “Bong Hits 4 Jesus case. In that case, the Supreme Court allowed officials to punish a student for a statement that he made when he was neither in school nor on school grounds. The Supreme Court brushed over those facts and found that the conduct was within the school jurisdiction. The Second Circuit builds on this precedent:
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. We have determined, however, that a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct “would foreseeably create a risk of substantial disruption within the school environment,” at least when it was similarly foreseeable that the off- campus expression might also reach campus. Wisniewski v. Bd. of Educ., 494 F.3d 34, 40 (2d Cir. 2007), cert. denied, 128 S. Ct. — (2008). We are acutely attentive in this context to the need to draw a clear line between student activity that “affects matter of legitimate concern to the school community,” and activity that does not. Thomas v. Bd. of Educ., 607 F.2d 1043, 1058 n.13 (2d Cir. 1979) (Newman, J., concurring in the result). But as Judge Newman accurately observed some years ago, “territoriality is not necessarily a useful concept in determining the limit of [school administrators’] authority.” Id.
The continual expansion of the authority of school officials over student speech teaches a foul lesson to these future citizens. I would prefer some obnoxious speech than teaching students that they must please government officials if they want special benefits or opportunities — a key for college applications. I expect that my notion of what constitutes the “qualities of good citizenship” are a bit different from that of Schwartz and Niehoff. I do not like the email and I believe that it would have been entirely appropriate for Niehoff to call in the parents about such language and conduct. The parents should be the punishing authority in such matters. However, no one appointed Schwartz or Niehoff as the monitors of good citizenship outside of their school. Central to any definition of good citizenship is free speech and not social conformity.
For the court’s ruling, click here.