On Monday, October 31, 2011, the Supreme Court denied the first of three petitions this Term – Doninger v. Niehoff, et al (11-113) – requesting the court to rule on the whether public school officials may discipline students for online comments or postings made on their personal computers, off school grounds. The other two petitions (Kowalski v. Berkeley County Schools (11-461) and Blue Mountain School District v. J.S. (11-502)) come from the 3rd Circuit, and conflict with this 2nd Circuit decision. While the 2nd Circuit permitted the school officials’ regulatory action, the 3rd Circuit held that the school officials exceeded their authority in disciplining students for off-campus speech. Read this for more on the circuit split.
The Second Circuit, in 2008, refused to enforce a preliminary injunction against the public high school’s principal and superintendent of the district for disciplinary actions taken against Avery Doninger, affirming the district court’s finding that Doninger had failed to show a sufficient likelihood of success on the merits. Doninger v. Niehoff, 527 F. 3d 41 (2d Cir. 2008).
Avery Doninger’s First Amendment fight began in 2007. She was the Junior Class Secretary at Lewis S. Mills High School in Burlington, Connecticut and, as a member of the Student Council, was heavily involved in the planning of an event called “Jamfest,” an annual “battle-of-the-bands” concert. However, due to a number of scheduling conflicts, the Student Council members feared they would not be able to hold the event that year. Avery and three of her fellow Council members took action by meeting at the school’s computer lab and sending a mass-email, requesting that recipients contact Paula Schwartz, the district superintendent, to “urge that Jamfest be held as scheduled, as well as to forward the email ‘to as many people as you can.’”
Both Schwartz and Karissa Niehoff, the school’s principal, received an influx of calls and emails from concerned parents.
Later that night, Avery was evidently still upset about the Jamfest fiasco, and resorted to posting a message on her publicly accessible blog (unaffiliated with LMHS). The now-infamous blog post began:
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 appreciate it. however, she got pissed off and decided to just cancel the whole thing all together.
The post continued:
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.-
Avery testified that by writing “im down,” she “meant that she approved of the idea of others contacting Schwartz to ‘piss her off more.’” Eventually, even though the Student Council and administration were able to work together to reschedule Jamfest, when it came time for class elections, Niehoff presented Avery with a printed copy of her blog post and effectively prohibited Avery from running for Senior Class Secretary. Niehoff explained her decision was based on:
(1) Avery’s failure to accept her counsel “regarding the proper means of expressing disagreement with the administration policy and seeking to resolve those disagreements”;
(2) the vulgar language and inaccurate information included in the post; and
(3) its encouragement of others to contact the central office “to piss [Schwartz] off more,” which Niehoff did not consider appropriate behavior for a class officer.
Avery’s name was not allowed to appear on the ballot, and she was not allowed to give a campaign speech. Despite that, Avery still won the election as a write-in candidate. She was not allowed to take office, however, and the second-place candidate became Senior Class Secretary.
Avery’s mother, Lauren Doninger, filed a complaint in state court alleging, among other things, a violation of her daughter’s First Amendment rights. After Schwartz and Niehoff removed the action to the District Court of Connecticut, Doninger filed a motion for a preliminary injunction, requesting that school officials hold new class secretary elections. The district court refused to grant the preliminary injunction. On appeal, the Second Circuit analyzed whether conduct, which occurs off of school grounds, may be regulated by a public school.
Though the Second Circuit acknowledged (and perhaps urged) that 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,” the court went on to elaborate on its own standard for such conduct.
The Supreme Court has held that, although students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” schools may prohibit student expression that will “materially and substantially disrupt the work and discipline of the school.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506-13 (1969). The Second Circuit applied the Tinker standard to off-campus conduct, when an eighth grader created a crude icon that “depict[ed] and call[ed] for the killing of his teacher” and transmitted that icon to some fifteen friends. Wisniewski v. Board of Education, 494 F. 3d 34, 40 (2d Cir. 2007). In Wisniewski, the Second Circuit established that off-campus conduct is regulable, “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.”
Applying this standard to Avery’s blog post, the Second Circuit held that the “record amply supports the district court’s conclusion that it was reasonably foreseeable that Avery’s posting would reach school property.” Further, the “record also supports the conclusion that Avery’s posting ‘foreseeably create[d] a risk of substantial disruption within the school environment.’”
In spite of the Second Circuit’s invitation to the Supreme Court to speak to this issue of off-campus conduct, the Supreme Court denied cert. There is some speculation that the High Court is more likely to hear Blue Mountain School District v. J.S. (11-502).
Although the discipline taken against Avery seems a bit extreme in this case, perhaps the precedent set – permitting schools to regulate off-campus conduct – is a good thing, in light of recent Internet bullying tragedies that, in extreme incidents, have led to suicide.