Second Circuit Upholds Punishment of High School Student for Out-of-School Web Entry

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.

19 thoughts on “Second Circuit Upholds Punishment of High School Student for Out-of-School Web Entry

  1. Another misguided step in the destruction of the Constitution and the Bill of Rights. The disgusting decisions such as this and the high-handed, illegal manner in which government at all levels has chosen to act over the past 8 years are eroding the fundamental values of our nation. The development of a dictatorship in the White House and the growth of the powers of executive branches of government at every level has crushed individual freedoms, and that, in turn, has devalued America as a repository of freedom and opportunity. It is a joke for our government to pretend to spread freedom and democracy around the world at a time when our governments, be they local, state or federal, deprive Americans of the same freedoms. Speech is to be protected, and that was in the First Amendment because it was that important. Now, speech can be restricted, property can be taken by eminent domain for non-public, commercial purposes, searches and seizures can be conducted without notice or probable cause, and the separation of church and state has been abolished, all to the detriment of “The American Way”. If Superman were here, he might not find anything worth fighting for. I’m glad my parents passed away before they had to witness such a horror as the ruination of the United States. Worst of all, school officials are breeding a new generation of youth who won’t even know any better. A sad commentary!

  2. “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.”
    ***************************************

    Territoriality is a very useful concept in defining the limit of law enforcement’s authority, but the good judges here fret about the poor school administrator, inundated by calls and emails from her disgruntled constituency. Obviously, we must protect our government officials from dissent by the public, these jurists reason, or else we’ll have real democracy where the will of the public might actually be considered. And as for potty mouth speech, it will be grudgingly tolerated when it doesn’t criticize the politburo, er… I mean the government officials. Talk about Brittney and Paris all you want, but leave the poor, impotent government official alone to do her work as she sees fit without scrutiny.

    I wonder if these reactionary judges ever stop to consider that cowling the free expression of students might tend to cowl their free expression when they are adults, leading inevitably to a docile populace ever susceptible to tyranny. Nah, that would be too farsighted for this country club crowd, whose main concern, we have seen on this blog, seems to be protecting hubby’s interests at the bank, or making jokes at the expense of the citizens who pay them. Lest you believe that evil occurs only through the actions of evil men, I give you these terminally misguided souls who exist only to promote law and order at the expense of freedom.

    Lenny Bruce had it right:” [t]ake away the right to say f**k and you take away the right to say f**k the government.”

    “Republics decline into democracies and democracies degenerate into despotisms.”
    –Aristotle.

  3. Where does the authority of this school administrator begin and where does it end? If the student in July makes a derogatory statement to a third party and the administrator hears about it,can she discipline this student? If the answer is yes, then the student has lost his/her freedom of speech. I don’t care if it is a verbal statement or a written statment in paper or on the internet. Where in the Constitution does it say that a student loses his/her First Amendment right when they become a student? How old does this student have to be before they “regain” their constitutional rights? Does a college student at a public university have a First Amendment right to freedom of speech when he/she is 18, 19, 20 or 21?
    This type of decision is a dangerous usurption of Constitutional rights. This is another example of how important those Senate confirmation hearings for Roberts and Alito were. If the school has control of students First Amendment rights as outlined in the above cases, do they have liability for the student who is walking with other students off of school grounds and is hit by a car an killed? Where does this territorial concept end?

  4. “Territoriality is a very useful concept in defining the limit of law enforcement’s authority,”

    It was also Hooper’s theory of rogue sharks in Jaws.

    “but the good judges here fret about the poor school administrator, inundated by calls and emails from her disgruntled constituency”

    How does inconvenience convey jurisdictional power upon the school or the courts?

    If it were a private school, then it’s a case of “buy the ticket, take the ride.”

    But what the hell is this?

    “she could be punished under a rule that students must “demonstrat[e] qualities of good citizenship at all times.”’

    Lead by example? Good citizenship is equivalent to treating the Constitution like a urinal puck?

  5. Advocacy restricted because of the perception that the internet was used as a potty mouth weapon instead of a tool.

    The standard tool of the bureaucrat…retaliation.

    Definition of a bureaucrat: one in authority that completely disregards common sense and goes ballistic when their authority (policy) is questioned.

  6. […] Professor Jonathan Turley views the decision as part of a “steady eradication of student rights” and thinks the decision teaches a “foul lesson to these future citizens.”  While he thinks that punishment is warranted when students use vulgar language or behave inappropriately, he thinks this punishment should come from parents and not school authorities. […]

  7. I read through most of the case. I think the Principal acted well, and other students should learn from this! Schools need to provide discipline, and if the class trip is over to a web blog, so be it. As a student officer, you have a public image to uphold (for yourself and the school). If she were in a political party, she would loose her nomiation as well!!!

    The best place for such comments is either a diary, or private IM session. On the internet adults have sometimes lost their composure when getting involved in flame wars. Quality content is lost in the heat of the moment.

    Now the Administrators did not send her to detention cuz there was no “crime” committed. If they did, then free speech violation would be of concern. This is the mild difference between discipline and punishment.

    I am interested in the “Bong Hits 4 Jesus” case. If not holding an office, and not breaking the law, I’m not sure how the case can ever be upheld. Again I am not familier the case about filtering smoke and referencing Christ, so I have to duck out here…

    L8r

  8. Did you actually read the opinion?

    This opinion only looks to whether she had a “a clear likelihood of success on the merits of her First Amendment claim.” Since it is 100% clear that she’s got a loser of an argument on school grounds, it’s at best a close question whether she *might* win with internet speech *designed* to reach onto school grounds.

    That’s a long, long way from determining that she’s got a substantially likelihood of success on such a close question. It is also hugely far from establishing the precedent for the proposition you cite.

    It’s all about the procedural posture and the standard of review, professor.

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