Doninger v. Niehoff, No. 07-3885 (2d Cir. May 29, 2008)
The U.S. Court of Appeals for the Second Circuit (CT, NY, VT) has ruled that a Connecticut school district that disciplined a student for vulgar and derogatory remarks made off-campus did not violate her free speech or equal protection rights. Avery Doniger, a student at Lewis Mills High School (LMHS), served on the student council and also was junior class secretary. After a student council planned-event called Jamfest was postponed for a third time, Avery and three other members of the council sought to garner community support for the event by sending out a mass e-mail encouraging recipients to contact superintendent Paula Schwartz and urge her to hold Jamfest as scheduled. Both Ms. Schwartz and LMHS principal Karissa Niehoff were inundated with e-mails and phone calls about Jamfest, causing Ms. Niehoff to cancel a scheduled off-site training session. When Ms. Niehoff encountered Avery, Avery claimed the principal told her that Jamfest was cancelled because of the students’ action. However, Ms. Niehoff disputed this version of the encounter, saying she expressed disappointment with the students because they resorted to a mass e-mail rather than coming to her or the superintendent to resolve the issue. That evening, Avery posted an entry on her publicly accessible blog, hosted by a website unaffiliated with LMHS, that reported that Jamfest had been cancelled and that referred to the school district administration as “douchebags.” In addition, the entry encouraged readers to continue to contact the superintendent to “piss her off more.” Shortly thereafter Jamfest was rescheduled. When school officials later became aware of Avery’s blog posting, Ms. Niehoff barred Avery from running for senior class secretary, based on “(1) Avery’s failure to accept her counsel ‘regarding the proper means of expressing disagreement with 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 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.
The Second Circuit affirmed. Addressing the free speech claim, the appeals court pointed out that had Avery’s speech occurred on campus, school officials clearly would have been justified in disciplining her based on the U.S. Supreme Court’s holding in Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), which allows schools to discipline students who engage in vulgar or offensive speech. While acknowledging that the Supreme Court had yet to address “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 Second Circuit noted its own ruling in Wisniewski v. Bd. of Educ., 494 F.3d 34 (2d Cir. 2007), cert. denied, 128 S. Ct. __ (2008) 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.” Although the court rejected the school officials’ contention that Wisniewski implicitly established that schools may regulate off-campus speech of the type Avery engaged in as long as the speech is likely to come to their attention, it agreed with their alternative argument that, “as in Wisniewski, the Tinker standard has been adequately established here.” The standard established in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), allows school officials to prohibit student expression that will “materially and substantially disrupt the work and discipline of the school.” Applying the Wisniewski framework, the appeals court found that the record in the present case provided ample support for the lower court’s conclusion that it was reasonably foreseeable that Avery’s posting would reach campus. Even though the entry was created off-campus, it dealt with events at LMHS, and Avery’s very intent in writing it was to encourage others to read it and respond. The record also supported a finding that the posting created a foreseeable risk of substantial disruption because: (1) the language used was plainly offensive and likely disrupt efforts to resolve the controversy; and (2) the posting’s inaccuracy in reporting that Jamfest had been cancelled made it foreseeable that “school operations might well be disrupted further by the need to correct the misinformation.” The court rejected Avery’s argument that the controversy may have stemmed not from her posting, but from the mass e-mail, noting that Tinker does not require actual disruption before school officials can restrain speech. It also rejected her claims based on equal protection the state constitution.
Doninger v. Niehoff, No. 07-3885 (2d Cir. May 29, 2008)
[Editor’s Note: Background on the case is below.]
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