Second Circuit Holds First Amendment Claim Against School Regulation of Off-Campus Speech Unlikely to Succeed on the Merits
By Jay Gill — Edited by Nicola Carah
Doninger v. Niehoff
Second Circuit, May 29, 2008, No. 07-3885
The Second Circuit unanimously affirmed the Connecticut District Court’s decision to deny a motion for preliminary injunction in a case involving a high school’s alleged violation a student’s First Amendment rights. Ms. Doninger filed suit after the high school prohibited her daughter from running for senior-class secretary, a move prompted by the school’s discovery of a blog in which the daughter had posted a “vulgar and misleading message” about administrators and an upcoming school event. The court found that the lower court had not abused its discretion in denying the preliminary injunction on the grounds that the case was unlikely to succeed on the merits.
Scott H. Greenfield of Simple Justice is troubled by the broad application of a “potential for disruption” standard. Greenfield claims that the Second Circuit ruling flies in the face of the Supreme Court’s holding in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gates.” Instead of protecting the rights of students in the schoolyard, Greenfield says, the Second Circuit is restricting those rights even once the students have left school.
Professor Jonathan Turley views the decision as part of a “steady eradication of student rights” and thinks the decision teaches a “foul lesson to these future citizens.” While he thinks that punishment is warranted when students use vulgar language or behave inappropriately, he thinks this punishment should come from parents and not school authorities.
At the time, Avery Doninger was a junior at Lewis Mills High School (LMHS) in Burlington, Connecticut. As the junior-class secretary, she was involved in organizing “Jamfest,” a battle of the bands concert taking place at the school. After the event had been delayed twice by the school administration, Avery and three other students dispatched a mass e-mail encouraging other students to contact defendant-appellee and school superintendent, Paula Schwartz, to urge that the concert take place as scheduled. A meeting ensued that day in which LMHS principal Karissa Niehoff, also defendant-appellee, informed Doninger that the e-mail was an inappropriate way to try to resolve the issue. That evening Doninger published a Livejournal blog post in which she referred to the administration as “douchebags,” claimed Jamfest was cancelled, and encouraged readers to call or write Schwartz and Niehoff “to piss [them] off more.”
When Niehoff discovered the blog posting, she prohibited Doninger from running for senior-class secretary. Doninger’s mother filed suit, alleging, inter alia, that the school had violated her daughter’s First Amendment rights. Among other relief sought, she moved for an injunction that would either require the school to hold new elections or grant her daughter the same title, honors, and obligations as those granted to the current secretary. The district court denied the motion and the Second Circuit affirmed, citing its ruling in Wisniewski v. Board of Education, 494 F.3d 34 (2d Cir. 2007), which held school sanctions of student expression constitutional where the expression “would foreseeably create a risk of substantial disruption within the school environment.”
In denying Doninger’s motion for preliminary injunction, the Second Circuit held that, while Doninger had shown Avery would suffer irreparable harm absent the injunction – the violation of her First Amendment rights – she had not shown a “likelihood of success on the merits.” The court cited Tinker for the proposition that there are “special characteristics of the school environment,” that must be taken into account when deciding First Amendment cases in the school context. Noting that the Supreme Court has not addressed a school’s authority to regulate expression taking place off of school grounds, the court relied heavily on its own precedent, Wisniewski, in determining that Doninger’s First Amendment claim for regulation of expression outside of the school context was unlikely to succeed on the merits. The court also relied on the “Bong Hits 4 Jesus” case, Morse v. Frederick, 127 S. Ct. 2618, 2623 (2007), which held that schools were entitled to discipline students for conduct that “would foreseeably create a risk of substantial disruption within the school environment.” The Second Circuit concluded that potential disruptive effects of Doninger’s post, such as a threatened sit-in in protest of the cancelled event, were reasonably foreseeable and, as such, the claim was unlikely to succeed on the merits.
Howard Bashman of How Appealing provides commentary, as does THELEN’s Technology Law Update. Carolyn Elefant of Legal Blog Watch comments on the case, and responds to critics who believe the school’s actions were justified.
Bergstein & Ullrich, LLP summarize the story, including the blog posts in question.