The U.S. 2nd Circuit Court of Appeals has affirmed its decision that high school students can be punished for what they write at home. It also has ignored an important opportunity to clarify student free speech rights in the digital age.

It was a sad day for democracy in our schools.

In 2007, Avery Doninger, the junior class secretary at Lewis S. Mills High School, in Burlington, thought school administrators had cancelled a popular “Jamfest” battle of the bands event that she was in charge of organizing. She wrote on her blog at, a social networking site, that school administrators were “douchebags” and encouraged others to write to the school superintendent “to piss her off more.”

Principal Karissa Niehoff banned Doninger from running for senior class secretary, citing school policy that says, in part, “All students elected to student offices . . . shall have and maintain good citizenship records.”

Niehoff also told students they could not wear T-shirts in support of Doninger’s write-in candidacy.

Doninger won the election against two other students, but was not allowed to take office. Doninger sued on First Amendment grounds. She has appealed twice to the Second Circuit in New York.

Beyond the decisions themselves, what is troubling is that the appeals court’s three-judge panel concluded April 25 that it doesn’t have to bother with a First Amendment issue.

“We do not reach the question whether school officials violated… First Amendment rights,” the judges said. “We see no need to decide this question.” Rather they ruled narrowly that school administrators “were properly afforded qualified immunity” from suit.

This case brings a couple of questions to mind. Shouldn’t parents be disciplining children for what they write at home, not school administrators? And with this crabbed decision aren’t we teaching students that 1) we’ll get you for what you write, and 2) we’ll even prevent you from running for office?

Great lessons in democracy.

The Circuit Court noted that the U.S. Supreme Court said in Tinker v. Des Moines Independent Community School District that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In that 1969 case, the Supreme Court ruled that school administrators could not punish students for wearing black armbands in protest of the Vietnam War.

But the Second Circuit also cited Tinker and other cases that school administrators may prohibit student expression that will “materially and substantially disrupt the work and discipline of the school” and schools have a responsibility for “teaching students the boundaries of socially appropriate behavior.”

U.S. District Judge Mark Kravitz found in 2009 that Doninger’s blog entry was not protected by the First Amendment. But he added that there is “evidence in the record, which when construed favorably for Ms. Doninger, would permit a reasonable jury to conclude that Ms. Doninger’s speech was chilled” when T-shirts were disallowed. Kravitz concluded this issue “is sufficiently similar” to the armbands in Tinker and allowed her to pursue a trial.

He also nearly implored the higher court for guidance on student speech in the Internet age. “Off-campus speech can become on-campus speech with the click of a mouse,” he wrote, quoting one law review commentator that “when it comes to student cyber-speech, the lower courts are in complete disarray.”

“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 . . . to predict where the line between on- and off-campus speech will be drawn in this new digital era,” wrote Kravitz.

But, sadly, the 37-page Second Circuit opinion written by Judge Debra Ann Livingston and joined by Judges Jose Cabranes and Amalya Kearse, offers this: “The law governing restrictions on student speech can be difficult and confusing, even for lawyers, law professors, and judges. The relevant Supreme Court cases can be hard to reconcile, and courts often struggle to determine which standard applies in any particular case.”

And this: “as we explained in Doninger II, the ‘Supreme Court has yet to speak on the scope of a school’s authority to regulate expression that, like (Doninger’s), does not occur on school grounds or at a school-sponsored event.”

And so rather than enter the thicket, the court punted, Avery Doninger lost and society remains in the dark about students’ free speech off campus with an I-pad or any other digital device. Now a college student, she is contemplating filing to the full Second Circuit or appealing to the U.S. Supreme Court.

Leave a comment