The U.S. Supreme Court has declined to hear the student speech case in which a high school junior from Burlington was punished for criticizing school administrators in a personal blog posting.

“This is the end of the road for this case. There really are no more avenues to pursue to overturn the lower court decisions,” said Frank LoMonte, the director of the Student Press Law Center.

avery doninger

Avery Doninger

Education lawyers and student speech activists have said the case would have provided a good opportunity for the high court to set a precedent for what rights students have in off-campus speech. The 1969 Supreme Court ruling in Tinker v. Des Moines has provided guidance for decades to school officials on when they can intervene in students speech, but the advent of Facebook, Twitter, YouTube and other digital forums have complicated matters.

The Tinker ruling reversed the disciplinary measures against students wearing black armbands to school in protest of the Vietnam War, declaring that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But the justices did allow administrators to restrain speech if it “invades the rights of others” or creates “substantial disorder.”

“I am not surprised they didn’t take the case. For many, many years the courts have held administrators can discipline for speech that is disruptive at school,” said Thomas R. Gerarde, the lawyer for the officials in Region 10 School District that punished student Avery Doninger for calling them “douchebags”

Federal district and appellate courts have recently issued conflicting rulings on the question of when off-campus speech can be subject to punishment at school.

In upholding the punishment of Doninger, the U.S. 2nd Circuit Court of Appeals in New York noted “The Supreme Court has yet to speak on the scope of a school’s authority to regulate expression that… does not occur on school grounds.” They instead decided to back the school officials saying they are immune from liability and lawsuits.

Sandy Staub, the legal director for American Civil Liberties Union’s Connecticut chapter, said lower courts and the Supreme Court have skirted the opportunity to clarify the rights of students when they speak off-campus.

“It just leaves the question for another day,” she said.

“We may have to wait a couple more years of uncertainty before the Supreme Court decides to weigh in,” LoMonte said. “They need to consider the free speech issues and determine what the boundaries are when students are off campus.”

But Gerarde says the Tinker ruling already has set those boundaries.

“Tinker is all that we need… We don’t need any clarification,” he said.

Doninger, who is now in college at Eastern Connecticut State University, needed four justices to agree to hear the case for it to move forward.

Jacqueline was CT Mirror’s Education and Housing Reporter, and an original member of the CT Mirror staff, joining shortly before our January 2010 launch. Her awards include the best-of-show Theodore A. Driscoll Investigative Award from the Connecticut Society of Professional Journalists in 2019 for reporting on inadequate inmate health care, first-place for investigative reporting from the New England Newspaper and Press Association in 2020 for reporting on housing segregation, and two first-place awards from the National Education Writers Association in 2012. She was selected for a prestigious, year-long Propublica Local Reporting Network grant in 2019, exploring a range of affordable and low-income housing issues. Before joining CT Mirror, Jacqueline was a reporter, online editor and website developer for The Washington Post Co.’s Maryland newspaper chains. Jacqueline received an undergraduate degree in journalism from Bowling Green State University and a master’s in public policy from Trinity College.

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