From the Student Press Law Center:
A U.S. District Court judge ruled
Thursday that a student had not clearly established her First Amendment right to criticize her principal in an off-campus blog that used coarse language, denying the student a trial on her claim.
Doninger also filed a First Amendment claim against Niehoff [the principal] for making students who opposed Doninger’s removal from office take off T-shirts that said “Team Avery” while in an assembly where student candidates gave speeches. In that count, Kravitz said the Tinker standard applied, and that the administrators were not protected by qualified immunity in that instance. The administrators argued that because the speech involved T-shirts, not armbands as in Tinker, that it was not clearly a Tinker case, and therefore, qualified immunity should apply.
“None of these distinctions convinces the Court that the right of students to engage in non-offensive, non-disruptive speech on school property was not clearly established,” Kravitz’s opinion said.
No doi. This case is fairly interesting, and got a trip up to the Second Circuit Court of Appeals on the student’s preliminary in junction motion. It also got a lot of attention in the blogosphere.
Why? Because the kid called her superintendent [edited; the previous edition of this post incorrectly reported that the comment was targeted at a principal] a “douchebag” on a livejournal post.
From the few facts I could glean from this most recent opinion (from the Student Press Law Center in PDF form), Ms. Doninger apparently had a disagreement with the superintendent [editd from: one of the principals] from her school regarding a popular school battle of the bands called “Jamfest.” In disgust, Doninger posted a blog entry on livejournal:
jamfest is cancelled due to douchebags in central office. here is an email that we sent out 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. anddd..here is the letter we sent out to parents.
According to facts recited in the opinion [edit from Apparently], Jamfest was not canceled, but the administrators had decided that it would either occur in the lunchroom (acoustic only) or that it would have to be rescheduled for the auditorium. And I guess they had a heckuva time dealing with angry students and parents once this “misinformation” was disseminated. Thus, as a sanction to Doninger, they (a) refused to allow her to run for reelection to class secretary [edit from run for class office], and (b) at an assembly where students went to listen to speeches for class office and/or vote, they prohibited friends of Doninger’s from wearing “Team Avery” T-shirts “in silent protest” (they did, however, allow Doninger to wear a T-shirt entitled “R.I.P. Democracy.”
Doninger sued for violations of her First Amendment rights (both for being punished by not being allowed to become a class officer and for the administration’s prohibition of the “Team Avery” T-shirts), her Fourteenth Amendment Equal Protection rights (as a “class of one”), for state law rights, and for intentional infliction of emotional distress. The district court denied Doninger’s preliminary injunction motion, finding her not likely to succeed on the merits of her class officer claim, finding no future irreparable harm vis-a-vis the Team Avery claims, and the Second Circuit affirmed, on slightly different grounds.
The Defendants were back, this time with a summary judgment motion, both on the substance of the claims as well as on qualified immunity grounds.
In what is a very comprehensive opinion, the Court determined that even if Doninger’s punishment for her blog entries amounted to a constitutional violation, such a right was not “clearly established” at the time of the alleged violation.
The Court listed a number of contrary cases addressing appropriateness of regulating in the schoolhouse on-line student speech created off-campus. It then cited to a number of law review articles (some of which were likely student notes, whose authors were thrilled that an Article III jurist cited their writing) recognizing the morass that this area of law is in:
If courts and legal scholars cannot discern the contours of First Amendment protections for
student internet speech, then it is certainly unreasonable to expect school administrators, such as
Defendants, to predict where the line between on- and off-campus speech will be drawn in this new
digital era. Since, as explained above, the particular right Ms. Doninger seeks to enforce was not
clearly established at the time of the events in question, Defendants are entitled to qualified
immunity on Ms. Doninger’s blog entry First Amendment claim.
However, in regards to the administrators’ confiscation and/or prohibition of the “Team Avery” shirts at the assembly, the school district was not so fortunate.
The district was up against Tinker v. Des Moines Independent Community School District, the watershed Supreme Court case that recognized that students’ use of non-disruptive armbands to silently protest the Vietnam conflict was protected expression. The district tried to argue that even though the school had no written ban on “electioneering” materials beforehand, and even though the administrators were not looking to confiscate any “electioneering” materials beyond the T-shirts, that that the T-shirts were prohibited “electioneering” speech, a content-neutral restriction. Buzz. Denied.
Then the school district tried to argue that this case was different from Tinker because it dealt with T-shirts and not armbands. Buzz. Denied. Then the school district tried to argue that Doninger didn’t have standing because hers was not one of the shirts that were confiscated. Buzz. Denied. No qualified immunity, and the case goes to trial on this issue. (Because Doninger lost on her “big” claim of not being allowed to be a class officer, I wouldn’t be surprised if the case settles, so long as the district can pay some of Doninger’s attorneys’ fees.)
School teachers and administrators have it tough. They have to make difficult, and sometimes snap, judgments about student discipline. They are often seen as “the enemy,” and schoolchildren are constantly trying to find ways to usurp and undermine their authority. But on the other hand, they have egos and tempers, too. School teachers and administrators are human, but some times the have to be super-human, especially when they’re feelings are hurt. And when a kid calls a superintendent [edit from principal] a “douchebag,” I’m sure that hurt. And I’m sure the school officials [edit from principal] didn’t want to have that “sort of kid” in a leadership role. And I’m sure that the school officials [edit from principal] may have been [edited from was] sick of this kid overreacting to restrictions the administrators were placing on Jamfest. And I’m sure the school officials [edit from principal] wanted to send a message that not every kid can go on livejournal, or myspace, and berate school officials. But how many hundreds of thousands of dollars could the district have saved if the principal simply let the “douchebag” comment roll of their backs [edited from her back]? Or, if the school district’s administrators were well educated on First Amendment law in school, so they could have avoided the potentially devastating confiscation of the “Team Avery” T-Shirts?
If she just gave Doninger a warning that, “if you run for class officer, you’re a representative of the school and your class. With that comes some responsibility, including the words you use to describe school officials. Should you shirk that responsibility, you will not be able to continue to be a class officer, or hold any position of authority or honor in an extracurricular at this school,” would that have solved the problem? Would this kid just have found a way to push the limits anyway, just to sue for suing’s sake? Who knows. In qualified immunity cases involving police action (particularly illegal search and excessive force cases) police are often given a bit of a “cushion” due to the snap judgments that must be made in the course of apprehending and restraining a suspect. Perhaps that “cushion” should be afforded to school administrators, if they reasonably perceive a substantial risk to the safety or security of the school or its children. Based upon the facts I discerned from the opinions, I don’t think that would have made much of a difference in this particular situation, however, it provides some additional protection when school leaders need to make snap judgments.
I think the case was rightly decided, and it will be interesting to see what happens if the case goes to trial.
Update — because of the comments below, I was alerted that I made a few errors recounting the facts of the case. The edits are above, in bold, and I welcome further (non-biased) clarifications.