Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, March 6, 2008

Doninger v. Niehoff, Or Footloose II

The Second Circuit has heard oral arguments in the case of a teen who criticized, on her blog, in somewhat enthusiastic language, the administrators of the high school she attends. After erroneously reporting on the activities of the administrators at Lewis S. Mills High School in Burlington, Connecticut, seventeen-year-old Avery Doninger called them "douchebags". The "douchebags" then barred her from running for re-election as class secretary. She ran anyway and won with write-in votes. The school then invalidated the results of the election.

Avery's mother sued on her behalf, and a district court judge upheld the school's decision. Read part of his ruling below.

The case is Doninger v. Niehoff, 514 F. Supp. 2d 199; 2007 U.S. Dist. LEXIS 64566 (U.S.D.C., Dst. Conn.2007).

Ordinarily, to obtain a preliminary injunction, a plaintiff must establish the following: (1) irreparable harm; and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in her favor.... In this case, however, Avery seeks an injunction requiring the school to remove the current Senior Class Secretary and to hold a new election for Senior Class Secretary in which Avery would be allowed to participate. Because this is a mandatory injunction that alters (rather than merely maintaining) the existing status quo, even higher legal standard applies. Avery must show a "clear" or "substantial" likelihood of success on the merits....Since an injunction regarding the school administration's authority to ban partisan t-shirts and other electioneering materials would be necessary in the immediate future only if the Court ordered a new election for Senior Class Secretary, the Court will apply the same clear or substantial likelihood of success on the merits standard to that claim as well.

The Second Circuit has also repeatedly emphasized that it considers "a showing of irreparable harm to be the most important prerequisite for the issuance of a preliminary injunction."... Avery asserts that any loss of First Amendment freedoms for even minimal periods of time "unquestionably constitutes irreparable injury." ...Despite the rather capacious language of Elrod, however, courts have recognized that plaintiffs invoking the First Amendment do not always get a free pass on irreparable harm. As the Second Circuit has noted, "[w]e have not consistently presumed irreparable harm in cases involving allegations of abridgement of First Amendment rights." ...Unless a governmental directive limits protected speech directly, which is clearly not the case here, the Second Circuit has required that a First Amendment plaintiff seeking an injunction demonstrate that a challenged governmental action has had or likely will have an actual chilling effect on speech. ...Avery claims that she was chilled from wearing her "Team Avery" t-shirt into the election assembly as a result of Ms. Niehoff's ordering other students to remove their "Team Avery" t-shirts.  Further, she asserts that she has limited her email and blog communications in an attempt to prevent another episode such as this one from occurring. For example, she has since limited access to her blog entries on livejournal, rather than leave the privacy setting for the site as public. Strictly speaking, existing case law does not seem to place any minimum on the First Amendment interest a party must assert to qualify for the irreparable harm presumption,... and so for purposes of this preliminary injunction motion the Court will assume that Avery has established irreparable harm with regard to her First Amendment claims. The Court is less certain that being denied the opportunity to run for Senior Class Secretary -- while obviously important to Avery herself -- constitutes irreparable harm under the Equal Protection Clause of the Fourteenth Amendment.   However, the Court is willing to assume irreparable harm for the purposes of this opinion, especially in light of its determination that Avery has satisfied the requirement of showing irreparable harm for her First Amendment claim.


The Supreme Court has made clear that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."...The Court has also cautioned, however, that "the constitutional rights of students are not automatically coextensive with the rights of adults in other settings,"...and that the rights of students "must be 'applied in light of the special characteristics of the school environment.'"


In the present case, this Court must determine whether LMHS administrators were entitled to decide that Avery's conduct in using the blog to address her concerns regarding Jamfest, as well as the language she chose to use in the blog itself, were sufficient to justify their declaring Avery ineligible to run for Senior Class Secretary, a voluntary extracurricular activity. This Court emphasizes that it need not -- and does not -- decide in this case whether and when a school can suspend, discipline, or remove a student because of the content of a blog or email the student prepared off-campus.


The parties in their briefs argue strenuously about which line of First Amendment student speech cases should provide the proper framework for analyzing the school's actions in this case. Avery champions one of the most famous of student speech cases, Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). In that case, several students decided to wear black armbands to school in order to protest the Vietnam War, despite a prohibitory school policy implemented two days earlier in an effort to forestall the students' protest. The Supreme Court "affirm[ed] the comprehensive  authority of States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools," but also noted that "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression."...However, other speech, especially passive political speech such as that reflected in the wearing of the black armbands, was protected.

In response, the school Defendants ask the Court to focus instead on Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986).  In Fraser, a student gave a speech on behalf of a nominee for student office that relied upon an extended sexual metaphor. Although the speech itself was not sexually explicit, the student later admitted that he "deliberately used sexual innuendo," and as a result, he was suspended for three days. ... The Supreme Court concluded that  [t]he First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent's would undermine the school's basic educational mission."


It is apparent to the Court that Hazelwood does not apply to this case, as there was no risk that anyone would consider Avery's blog to be speech sanctioned by or otherwise attributable to the school....However, whether Tinker or Fraser provides the appropriate framework for considering the school's actions in this case is far less clear.

For neither Tinker nor Fraser involved participation in voluntary, extracurricular activities, and in other contexts, the Supreme Court and other courts have been willing to accord great discretion to school officials in deciding whether students are eligible to participate in extracurricular activities. Indeed, as one treatise has noted, "an overwhelming majority of both federal and state courts have held that  participation in extracurricular activities . . . is a privilege, not a right. In fact, one of the longest string cites one is likely to encounter this side of a law review article supports the proposition that extracurricular activity is not a constitutionally protected property interest."


As a student leader, Avery had a particular responsibility under the school handbook and school policy to demonstrate qualities of good citizenship at all times. Ms. Niehoff testified that she defined good citizenship as respect for others, behaving appropriately and as a good role model, working to initiate community connections, and promoting positive interactions and conflict resolution. Avery and Ms. Doninger also signed the school handbook, which included language regarding the social and civic expectations of students, at the beginning of the school year. Ms. Niehoff testified as well that class officers were expected to work toward the objectives of the Student Council, work cooperatively with their advisor and with the administration, and promote good citizenship both in school and out. Not least, the Court finds that Ms. Niehoff discussed these responsibilities with Avery on April 24, 2007, in the context of the original Jamfest email, and indicated to Avery that such an approach to conflict resolution with the administration was inappropriate. Understandably, then, Ms. Niehoff testified that a factor of particular relevance in her disciplinary decision was the fact that Avery posted her blog entry the very evening of the day on which that conversation occurred.

The blog itself clearly violates the school policy of civility and cooperative conflict resolution. Apart from the use of the word "douchebags," Avery also urged her readers to contact Ms. Schwartz specifically to "piss her off more," Defs.' Ex. C., hardly the type of constructive approach that a school would wish to encourage. Avery also strongly suggested in her email that Jamfest had been cancelled, full stop, despite the fact that Ms. Niehoff, even according to Avery's own testimony, offered the possibility of rescheduling Jamfest later in the school year. Thus, this statement was at best misleading, and at  worst, entirely false. As Ms. Niehoff noted in her testimony, Avery's conduct in writing the blog was exacerbated by her inclusion verbatim of the email the four students had sent earlier in the day and which Ms. Niehoff had told Avery was in violation of the school's internet policy. The three other signatories to the email, P.A., J.E., and T.F., all stated that they considered the use of the  word "douchebags" to be inappropriate, and Ms. Doninger also agreed that the blog was offensive and deserving of punishment. See Dep. of T.F., Ct. Ex. 1, at 93-94; Defs.' Ex. H (Ms. Doninger). Indeed, Avery's counsel conceded at oral argument that the blog entry was offensive. Even Avery herself intimated that she opposed the specific punishment chosen rather than denying the appropriateness of any punishment at all, stating that this was a case where "the punishment didn't fit the crime."

Perhaps a more "fitting" punishment, as suggested by Ms. Doninger, would have been to bar Avery from participation in either this year's or next year's Jamfest. See Pl.'s Ex. 11. However, as the Court has already discussed, it is not the Court's role to determine whether the discipline imposed was the most appropriate, but only whether that discipline was constitutionally acceptable. Once school authorities made the permissible decision to punish Avery for her blog entry, the scope of that punishment lay within their discretion. The Court defers to their experience and judgment, and has no wish to insert itself into the intricacies of the school administrators' decision-making process.

None of this is to say that school officials have completely unfettered discretion to disqualify students from participating in extracurricular activities. This Court is not faced with a case where a student was denied the right to run for student office because of the color of her skin, or her religion, or even her politics. Nor was Avery barred from running simply because she disagreed with school administrators and that is made clear by the fact that the other three students who sent the mass Jamfest email were permitted to run for student office. Instead, Avery was barred from running as a class officer because of her conduct and the vulgar language she used in her blog, neither of which were consistent with her desired role as a class leader. There can be no question that teaching students the values of civility and respect for the dignity of others is a legitimate school objective.


The Court has more substantial concerns, however, regarding the "Team Avery" t-shirts. The shirts did not violate the school dress code or contain vulgar or offensive language, and could not be seen as endorsed by the school administration. Moreover, the students intended to wear them in the auditorium as a silent protest, similar to the wearing of black arm bands in Tinker. As such, the t-shirts are not governed by either Fraser or Kuhlmeier, but rather by Tinker. As mentioned above, under Tinker, the school administration must show that permitting the t-shirts into the auditorium "would materially and substantially  interfere with the requirements of appropriate discipline in the operation of the school."...No such showing was made at the preliminary injunction hearing; the only evidence of a disruption at the election assembly was the shouting of one or perhaps a few students that Avery be allowed to speak. Not only was the disruption minor and temporary, it could hardly be due to the t-shirts, as the students were forbidden to wear them into the auditorium. Ms. Niehoff and Ms. Schwartz have presented no evidence that had the t-shirts been permitted, the foreseeable disruption would have been so much greater as to meet the Tinker standard.

However, the Court would also note that Tinker applies to the "prohibition of a particular expression of opinion." ...School administrators are certainly free to set reasonable, ex ante policies regarding the forms of expression considered appropriate in light of the school's educational mission. ... At the hearing, Ms. Niehoff testified that her objection to the students' t-shirts was based on her conviction that permitting electioneering materials in the auditorium where voting was to take place was unfair to those candidates without such resources.

The Court today need not rule on the wisdom of such an approach. Here, however, there was certainly no formal written policy to that effect at the time, and instead the approach of school administrators appears to have been rather ad hoc, to say the least, at least on the evidence presented to date. And, of course, Avery was not a candidate for any office. The danger of such an ad hoc approach is that it may allow for censorship based on the message conveyed ? here, support for Avery in her struggle with administrators. ...

Therefore, it is fair to say that the Court is troubled by the school's conduct regarding the "Team Avery" t-shirts. However, as noted previously, the concerns about the "Team Avery" t-shirts are inextricably entwined with Avery's request for a new election, as the Court has not been made aware of any imminent or upcoming election at LMHS and school administrators had no objection to students wearing such t-shirts outside of the election assembly. Since the Court will not grant Plaintiffs request for a new election and Plaintiff has not identified any upcoming election assembly at which t-shirts might be banned, the Court sees no need to rule definitively on this important issue at this time.


Having examined the evidence provided by Avery, the Court finds that she has failed to show a clear or substantial likelihood of success on the merits of her equal protection claim. Regarding the April 24, 2007 email, Ms. Niehoff testified that she had similar log entries placed in the activity logs of each of the four students involved in sending the original Jamfest email. J.E., one of the Jamfest coordinators and a co-signatory of the email, testified that she and her mother in fact found a similar entry in her own log. All four students were present at the April 25, 2007 meeting with Ms. Niehoff and Ms. Schwartz, at which Ms. Niehoff testified she raised the issues of the impropriety of the email and the conduct expected of class officers. Even crediting Avery's account that Ms. Niehoff did not discuss the conduct expected of class officers, all the students present were aware that Ms. Niehoff and Ms. Schwartz were upset about the email and the resulting phone calls and emails from parents and local citizens. Thus, the Court finds that Avery was not the only student scolded for sending the original Jamfest email on April 24, 2007.


Avery also claims that her equal protection rights were violated when she was the "only student taken into Defendant Niehoffs office and scolded for the April 24, 2007 e-mail," and when "she was punished for her entry while another student who posted another comment on that stated the superintendent of school was 'a dirty whore' was not punished."

The judge declined to grant the preliminary injunction, and Mrs. Doninger appealed to the Second Circuit.

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