Second Circuit Affirms School Administrators Can Prohibit Disruptive Speech

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Second Circuit Affirms School Administrators Can Prohibit Disruptive Speech: Doninger v. Niehoff, 527 F.3d 41 (2nd Cir. 2008)

The Second Circuit Court of Appeals (Livingston, J.) recently issued a decision limiting the First Amendment right of Connecticut high school student Avery Doninger to express her opinion because the expression could interfere with the operation of her school. Avery’s mother, Lauren Doninger, brought suit after the high school punished Avery for expressing an opinion on an upcoming school-sponsored music festival on a personal blog. Avery’s mother also requested preliminary injunctive relief against the high school to repeal her daughter’s punishment. The request for injunctive relief was denied by the United States District Court for the District of Connecticut and a unanimous panel of the Second Circuit affirmed.

Avery Doninger was a high school junior in Burlington, Connecticut during the 2006-2007 academic school year. As junior class secretary, she was involved in organizing a yearly student concert known as Jamfest. School administrators had delayed the event on two separate occasions and, in April of 2007, Avery and her fellow students learned that administrators were contemplating a third delay. In response, Avery and three other students sent a mass email, encouraging students to contact school administrators to express concern about the potential third postponement of Jamfest. School administrators were then subjected to a deluge of telephone calls and emails. School principal Karissa Niehoff met with Avery and expressed her disappointment that Avery had sent out the email. Niehoff told Avery that class officers are charged with working cooperatively with school administrators and should always demonstrate qualities of good citizenship.

That evening, Avery made a critical posting on her personal blog in which she referred to school administrators as “douchebags” and encouraged readers to keep calling and emailing principal Niehoff and school district superintendent Paula Schwartz “to piss [them] off more.” Several of Avery’s classmates responded to the posting with messages that included vulgar language. When principal Niehoff discovered the blog posting, she prohibited Avery from running for senior class secretary. Principal Niehoff’s reasons for such discipline were three-fold. First, Avery disregarded Niehoff’s advice that class officers should work with school administrators to resolve the Jamfest dispute. Second, the blog posting was inaccurate and included vulgar language. Third, the portion of Avery’s blog posting that encouraged other students to try to further “piss off” school administrators was inappropriate for a class officer. Despite the fact that Avery was not allowed to appear on the ballot, she ultimately received the plurality of votes as a write-in candidate. The school, however, did not permit her to take office, and the second-place candidate became senior class secretary.

Avery’s mother filed suit against principal Niehoff and superintendent Schwartz, alleging, among other claims, that the defendants violated Avery’s First Amendment right to freedom of speech and expression. Avery’s mother also sought a preliminary order to void the senior class secretary election and hold a new election in which Avery would be allowed to participate. Alternatively, Avery’s mother requested that the court order the school to bestow on Avery the same title, honors, and obligations as the student elected to the senior class secretary position, including the privilege of speaking at graduation. The District Court denied the request for preliminary relief.

Avery’s mother appealed the District Court ruling, which the Second Circuit affirmed. In rendering its decision, the Second Circuit recited the well-established Supreme Court precedent that students do not “shed their constitutional rights to freedom of speech or expression at the school house gates.”  Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969). That right, however, does not come without limitation. In the Tinker decision, the Supreme Court recognized that student expression may be prohibited when it will “materially and substantially disrupt the work and discipline of the school. Id., 393 U.S. at 513. 

In affirming the District Court ruling, the Second Circuit held that plaintiff had not shown that she was likely to succeed on the merits of her claim, a prerequisite to the issuance of preliminary injunctive relief. This was so because Avery’s blog posting created a foreseeable risk of substantial disruption within the school environment. Evidence of such a risk included a threatened student sit-in protest. Further, Avery and other students involved in the Jamfest dispute were called away from their classes at times to manage the dispute. Niehoff and Schwartz were forced to miss several school-related activities because of the large volume of calls and emails they received about student reaction to the posting. Thus, the Second Circuit concluded that the risk of substantial disruption at Avery’s school precluded Avery’s mother from showing a reasonable likelihood of success on the merits of her case, and affirmed the denial of plaintiff’s request for injunctive relief.