Doninger v. Niehoff, No. 07-1129 (D. Conn. Jan. 15, 2009)
A U.S. district court in Connecticut has ruled that school officials who barred a student from running for senior class secretary after she posted vulgar and derogatory remarks about the school district administration on her off-campus blog did not violate her First Amendment free speech rights or her Fourteenth Amendment equal protection rights. The ruling on the merits of the case followed an earlier ruling by the court, upheld by the U.S. Court of Appeals for the Second Circuit (CT, NY, VT), that the student had failed for purposes of obtaining a preliminary injunction from the court against the school’s actions to established the required likelihood of success on the merits of her claims. The case stemmed from a mass e-mail and blog entry by Avery Doniger, a student council member and junior class secretary at Lewis Mills High School (LMHS), protesting the rescheduling of a student council event. School officials were inundated with e-mail messages and phone calls generated from her e-mail, and her subsequent blog entry reported that the event had been cancelled altogether, referred to school personnel as “douchebags,” and encouraged readers to continue to contact the superintendent to “piss her off more.” When school officials later became aware of this blog posting, the principal barred Avery from running for senior class secretary. There also was an incident involving school restrictions on the wearing of “Team Avery” shirts by her supporters.
Avery sued the superintendent and the principal in state court, alleging violation of her free speech and equal protection rights under the federal constitution, as well as violations of the state constitution. She sought a preliminary injunction to order school officials either to hold a new election allowing her to run for class secretary or to install her as an additional senior class secretary. The suit was removed to U.S. district court, which denied Avery’s motion for the injunction, finding that she had not established the required substantial likelihood of prevailing on the merits of her case. The Second Circuit, relying the “substantial disruption” standard established in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), affirmed this decision.
On remand to the district court, both parties filed motions for summary judgment. The district court denied Avery’s motion and granted the defendants’ motion in part. The court denied the defendants summary judgment as to Avery’s claim relating to the T-shirt incident, finding that there were unresolved factual questions that made summary judgment inappropriate and that, assuming Avery’s allegations were true, the right to wear the shirts was so clearly established under Tinker that the defendants would not be entitled to qualified immunity from this claim. As to the claim relating to the blog, the court first rejected Avery’s argument that new evidence cast doubt on whether her blog entry “actually caused disruption.” Under Tinker, the court pointed out, school officials are not required to demonstrate actual disruption, but rather to reasonably forecast such disruption. However, the court found that Avery’s second argument—that she was not disciplined until weeks after the incident had been resolved and not because of potential disruption but instead because of her offensive remarks—prevented the court from granting the summary judgment based on the Second Circuit’s reliance on Tinker.
Instead, the defendants obtained summary judgment on the blog claim because they were entitled to qualified immunity. Applying the two-part qualified immunity test established in Saucier v. Katz, 533 U.S. 194 (2001), while acknowledging that Saucier was under review by the U.S. Supreme Court in Pearson v. Callahan, the court examined the facts to determine: (1) whether a constitutional violation occurred, and, if so, (2) whether the violated right was clearly established at the time. Regarding the first prong, the court revisited its analysis in its earlier ruling denying the preliminary injunction, in which it had concluded that the principle established in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)—that schools can restrict lewd, vulgar and plainly offense student speech—also applied to off-campus speech. While acknowledging that the Second Circuit had declined to decide this point and that this “might have been intended to gently telegraph to the [district court] that it erred in its analysis of Fraser,” the district court stated that unless and until the Second Circuit ruled otherwise, it would not change its position.
Even if Fraser does not apply to off-campus speech, the court continued, the defendants still would be entitled to qualified immunity because the constitutional right was not clearly established at the time of the alleged violation. The court defined the right at issue as “the right not to be prohibited from participating in a voluntary, extracurricular activity because of offensive off-campus speech when it was reasonably foreseeable that the speech would come on to campus and thus come to the attention of school authorities.” This right, so defined, was not clearly established at the time of their actions, because (1) it is “not clear that participation in extracurricular activities should be considered a right at all,” especially in the context of the First Amendmend; (2) given the Second Circuit’s explicit refusal to decide the issue in the present case, there could hardly be any debate that Fraser’s applicability to off-campus was not clearly established; and (3) the case law Avery cited in support of the proposition that it was clearly established that school officials do not have the authority to regulate off-campus speech was decided before the advent of Internet speech. Noting that the jurisprudence in this area is in a state of flux and “will need to evolve in order to address this new environment, and the Second Circuit has begun to address it in cases such as Wisniewski,” the court concluded: “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.”
Doninger v. Niehoff, No. 07-1129 (D. Conn. Jan. 15, 2009)
[Legal Clips Editor’s Note: Summaries of the earlier rulings, which detail more of the facts of the case, are available starting below. Information on other cases and legal resources on student online expression are available starting from the other links.]
NSBA School Law pages on Doninger v. Niehoff
NSBA School Law pages on Florida lawsuit
NSBA School Law pages on J.S. v. Blue Mountain Sch. Dist.