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Student Blog Insults Not Protected by First Amendment

The United States Court of Appeals for the Second Circuit affirmed the decision of the United States District Court for the District of Connecticut in the case of Doninger v. Niehoff et al., denying a preliminary injunction to a Burlington, Connecticut student that would have allowed the student to run for class office despite being stripped of that privilege by school administrators at Lewis Mills High School.  Her offense? Posting a “vulgar and misleading message about the supposed cancellation of an upcoming school event” on a publicly accessible weblog (“blog”). The student’s mother sued the school district in federal district court, claiming that her daughter’s First Amendment rights had been violated, and seeking to void the election for Senior Class Secretary and either have a new election ordered or grant her daughter the same rights and privileges as would be accorded to her had she won the election, including speaking as class officer at graduation.  The preliminary injunction was denied by Judge Kravitz, and his decision upheld by the Second Circuit.

The facts of the case are somewhat disputed, but essentially it appears that Avery Doninger, as the Junior Class Secretary, was involved in planning the annual Battle of the Bands, and the event was postponed twice for various reasons. When it appeared that a third posponement was possible, four students met in the school computer lab and sent out a message to parents and members of the community from one of the parents’ email accounts, alerting them to the situation, and asking them to contact the school superintendent to protest.  As a result, the principal and superintendent received a large volume of calls and e-mails about the proposed cancellation.  After a conversation with school administration that day, Avery went home and posted a message on her personal weblog calling the central office administration “douchebags” and stating that they had decided to cancel the event altogether, a fact denied by the administration.  She then encouraged people to contact school administration to “piss them off more”.  Several students posted comments to the blog, including one calling one of the administrators a “dirty whore”.  As might have been expected, the following day, the administration received many more contacts by phone and e-mail from the community regarding the event.

Although the event was held and the principal did not find out about the blog post until later, when Avery tried to submit her nomination for Senior Class Secretary election, the principal showed her a copy of the blog post and demanded that she apologize to the superintendent, show a copy of the post to her mother, and withdraw her candidacy.  Avery complied with the first two demands but not the third, and was denied the opportunity to run in the election on the grounds that she had failed to accept counsel from the administration on acceptable ways to resolve her concerns about Jamfest, she had used vulgar language in her post, and she encouraged others to disrupt the business of central office, none of which were considered conduct fitting for a class officer.

The court noted that school administrators may limit speech by students that will materially and substantially disrupt the work and discipline of the school, and that vulgar or offensive speech that might be protected in the adult world may be limited by school officials in the name of teaching students the boundaries of socially appropriate behavior.  Moreover, although the Supreme Court has yet to rule on the issue, the Second Circuit has determined that students may be disciplined for conduct occurring off school grounds when that conduct would foreseeably create a risk of substantial disruption within the school environment.  The court found that Avery’s blog post was sufficiently vulgar and incited disruption to the educational process such that if it had been distributed on school grounds, it would have been the legitimate target of disciplinary action by school officials. The court rejected the student’s argument that the speech was not subject to disciplinary action because it occurred off school grounds in the privacy of the student’s home, because it was specifically designed for the purpose of coming onto school grounds and disrupting the school.  Avery posted the comments on her blog specifically to get students to respond and to encourage students to get their parents involved to contact the school and central office administration to disrupt their usual business and force them to focus on their issue.  Moreover, her language was “plainly offensive” and not conducive to cooperative conflict resolution.

It was also significant to the court’s decision that the action taken by school officials was not to suspend or expel Avery from school, but to stop her from running for an office in student government, since participation in voluntary extracurricular activities is a “privilege” that can be rescinded when students fail to comply with the obligations inherent in the activities.  Avery’s speech was found likely to disrupt the proper operation of the student government and the values that activity is designed to promote (i.e., good citizenship).  Noting that school officials have the difficult task of teaching “the shared values of a civilized social order”, including both free expression and civility, the court stated that it is not free to intervene in how school officials carry out this task absent specific constitutional guarantees not present here.

The court went one step further in its opinion, however, and stated that there is no need for school administrators to wait until there is an actual disruption in order to act to avoid that disruption.  Instead, school officials may act to forestall a reasonably foreseeable disruption to the educational process by taking immediate disciplinary action.  This may present the lasting legacy of this case, since we in Connecticut have been struggling the last few years to determine the meaning of the phrase “serious disruption to the educational process” in the context of suspension and expulsion under our state laws and constitutional requirements.

You be the judge: Will this case change the way in which school officials interpret the requirement for “serious disruption of the educational process” in determining appropriate disciplinary consequences for other types of on campus and off campus misconduct?