Sanctioning Students For Derogatory Blog Posts

F.3d, 2011 WL 1532289 (2d Cir. Apr. 25, 2011)

"Law Unsettled on Schools’ Authority to Sanction Students for Off-Campus Speech"

By Richard Fossey

Professor & Mike Moses Endowed Chair in Educational Administration, University of North Texas, Denton, TX

In Doninger v. Schwartz, decided on April 25, 2011, the Second Circuit Court of Appeals issued its second opinion in a long-running dispute between Avery Doninger, a high school student, and school officials in a Connecticut school district over the school’s authority to sanction Doninger for off-campus speech she communicated through a blog post The court ruled that school officials enjoy qualified immunity for sanctioning Doninger because the law is unsettled regarding the school’s authority to punish her for the critical remarks she made about school officials in her blog post. In addition, the court ruled that school officials enjoy qualified immunity from Doninger’s First Amendment claim when they refused to allow her to wear a T-shirt proclaiming “Team Avery” at a school assembly.

Facts of the Doninger Case

In 2007, Avery Doninger, a high school student and member of the student council at Lewis S. Mills High School in Connecticut, was unhappy about the possibility that the school might reschedule or cancel a battle-of-the bands concert called Jamfest Unable to see school principal Karissa Niehoff immediately, Doninger and some classmates sent out a mass e-mail message to students, parents and others from the school’s computer lab stating that “the Central Office [had] decided that the Student Council could not hold its annual Jamfest/battle of the bands in the auditorium” and urging readers to contact the central office and request that the event be held as originally scheduled in the school auditorium. (p. *2) As the First Circuit noted, Avery and her classmates used the computer lab to distribute their message in spite of a school policy that prohibited students from using the Internet or e-mail accounts “other than those provided by the district for district purposes” (p. *2). The mass e-mail included the school-district office’s phone number and urged recipients to call the district office and forward the e-mail to others. Later that day, the group sent another e-mail message that included Superintendent Paula Schwartz’s e-mail address and phone number. Superintendent Schwartz and Principal Niehoff both received numerous phone calls and e-mail messages regarding the Jamfest controversy. Niehoff was called back to her office from a planned in-service training day. (p. *2)

Later the same day, Niehoff had a conversation with Doninger about the first e-mail message. The parties disagree as to what was said. Niehoff testified she told Doninger that sending a mass e-mail containing inaccurate information from the computer lab was unbecoming to a class officer Niehoff also contended that she asked Doninger to publish a new e-mail with corrected information and that Doninger agreed to do so. Doninger disputes Niehoff’s version of the conversation. (p. *3)

That evening, Doninger posted a message on her publicly accessible blog that was hosted by livejournal.com, a website unaffiliated with the school district. The blog post stated as follows (punctuation and spelling as published by the court):

jamfest is cancelled due to douchebags in central office. Here is an email that we sent out to a ton of people and asked them to forward to everyone in their address book to help get support for jamfest Basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and emails and such. we have so much support and we really appriciate [sic] it. however, she got pissed off and decided to just cancel the whole thing all together. anddd [sic] so basically we aren’t going to have it at all, but in the slightest chance we do it is going to be after the talent show on may 18th. anddd. . [sic] here is the letter we sent out to parents. (p. *3)

Doninger testified later that her use of the word “douchebags” in her blog post “referr[ed] to anyone involved in the cancellation of Jamfest,” including Superintendent Schwartz. (p. *3).

These events caused a minor furor at Doninger’s high school. She herself testified that students were “all riled up,” believing that the music event had been cancelled (p. *4) Superintendent Schwartz and Principal Niehoff testified  that for two days “they were forced to miss or arrived late to several school-related activities as a result of the controversy, including a health seminar, an observation of a non-tenured teacher, and a superintendent’s meeting.” (p. *4)

School officials did not learn of Doninger’s “douchebags” blog post until sometime later. Principal Niehoff asked Doninger to apologize to the Superintendent, tell her mother about the blog post, and withdraw her candidacy for Senior Class Secretary. Doninger agreed to the first two requests but declined to withdraw from running for office Niehoff, however, refused to allow Doninger to run for the class office Doninger won the election with write-in votes, but the school refused to allow her to serve.

One last significant event took place before litigation commenced. At an assembly scheduled to allow student-class-office candidates to make speeches, several students attempted to wear T-shirts proclaiming their support for Doninger. The T-shirts bore the words “Team Avery” on the front and the words “Support LSM Freedom of Speech” on the back. (p. *5) Niehoff refused to allow students to wear the T-shirts at the school assembly, testifying later that she considered the T-shirts to be disruptive Doninger brought one of the “Team Avery” T-shirts to school on the day of the assembly but did not wear it because of Niehoff told her the “Team Avery” T-shirts were not permitted at the assembly. (*6)

Procedural History of the Case

Doninger’s mother filed suit in state court, seeking an injunction that would void the election of the Senior Class Secretary and require a new election in which her daughter could run. Alternatively, Doninger’s mother sought a ruling that would direct the school “to grant her daughter ‘the same title, honors, and obligations as the student elected to the position, including the privilege of speaking as a class officer at graduation.’” (p. *6)

The school district removed the case to federal court, where a trial judge denied Ms. Doninger’s motion for an injunction. The Second Circuit, in an opinion joined by then Judge Sonia Sotomayor, affirmed the trial court’s order. Doninger v. Niehoff, 572 F.2d 41 (2d Cir. 2008) In ruling against Doninger, the Second Circuit expressed the view that courts should normally be deferential to school-district decisions. School officials sometimes make mistakes, the Second Circuit observed. “Nevertheless, as the Supreme Court cautioned years ago, ‘[t]he system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members,’ and we are not authorized to intervene absent ‘violations of specific constitutional guarantees.’” (Doninger v. Niehoff, 572 F.2d at 54, quoting the Supreme Court’s decision in Wood v. Strickland, 470 U.S. 308 (1975)). For a discussion of Doninger v. Niehoff, see Richard Fossey, What Are Judge Sotomayor’s Views on Public Education? Some Clues from the Doninger Case, TEACHERS COLL. RECORD, ID Number 1574 (June 29, 2009).

On remand, Doninger amended the suit to substitute herself as the plaintiff and sought damages for the violation of her constitutional rights. On cross motions for summary judgment, the trial court denied Doninger’s motion for summary judgment and granted the school defendants’ motion in part and denied it in part. The court dismissed Doninger’s claim that her First Amendment rights were violated when the school sanctioned her for her blog post, finding the law unsettled regarding a school district’s authority to sanction students for off-campus speech; and therefore, the school defendants enjoyed qualified immunity from suit. The court denied the defendants’ motion for summary judgment on Doninger’s claim that school officials violated her First Amendment rights when they prohibited her from wearing a “Team Avery” T-shirt at the school assembly. The trial court allowed this claim to go forward.

The Second Circuit’s Opinion

In a lengthy analysis, the Second Circuit upheld the trial court’s decision granting summary judgment to the school defendants on Doninger’s claim that her First Amendment rights were violated when she was sanctioned for her blog post In reaching its decision on this point, the Second Circuit relied on guidance from the Supreme Court in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, in which the Court held that school officials can censor student speech if they reasonably believe the speech will create a substantial disruption in the school environment. In the Second Circuit court’s opinion there was no triable issue “as to whether it was objectively reasonable for school administrators to conclude that Doninger’s posting was potentially disruptive to the degree required by Tinker” (p. *11). As the Second Court pointed out:

[T]he controversy over Jamfest’s scheduling had already resulted in a deluge of phone calls and emails, several disrupted schedules, and many upset students even before Doninger posted her comments on livejoural.com. The disruption continued the next day, as calls poured in for both Principal Niehoff and Superintendent Schwartz, a group of upset students gathered outside Niehoff’s office, and Doninger and three other students were called out of class to meet with Schwartz [and other school officials] in order to resolve the controversy. Perhaps a school official in these circumstances might err in concluding that Doninger’s blog post—disseminated amidst circulating rumors that Jamfest had been arbitrarily cancelled, calling the responsible school administrators “douchebags,” and urging fellow students to take action to “piss [them] off more”—was of the sort to stoke disruption and frustrate the School’s ongoing efforts at conflict resolution. . . . But even viewing the evidence in the light most favorable to Doninger, there is simply nothing in the record creating a disputed issue of fact as to the objective reasonableness of any such judgment. (p. *11)

Regarding Doninger’s claim that school officials violated her First Amendment rights when they prevented her from wearing a “Team Avery” T-shirt at the student-election assembly, the Second Circuit reversed the trial court.

We agree [with the trial court] that a reasonable fact finder could conclude that Defendants were mistaken in assessing the likely impact of the t-shirts and thus the permissibility of prohibiting them pursuant to Tinker. At the same time, however, we conclude that any such mistake was reasonable. Accordingly, Defendants are entitled to qualified immunity on this claim as well. (p. *14)

Implications of Doninger v. Schwartz

Doninger v. Schwartz is significant for two reasons. First, the decision emphasizes the federal courts’ uncertainty with regard to school officials’ constitutional authority to sanction students for electronically-delivered off campus speech. This uncertainty is also highlighted by two conflicting Third Circuit decisions that reached contrary conclusions regarding the authority of school administrators to punish students for posting a fake MySpace profile that demeaned a school principal J. S. v. Blue Mountain School District, 593 F.3d 286 (3d Cir.) rehearing en banc granted, opinion vacated (3rd Cir. Apr. 9, 2010); Layshock v. Hermitage School District, 593 F.3d 249 (3d Cir.), rehearing en banc granted, opinion vacated (3d Cir. Apr. 09, 2010).

The Third Circuit agreed to en banc review of those decisions, and school administrators and legal scholars are hopeful that the Third Circuit’s en banc decision in these cases—when it is released—will clarify the law on this issue in a way that will be helpful to other federal courts.

Second, even the much litigated issue as to whether public-school students enjoy a First Amendment right to wear T-shirts to school that express a controversial message has not been clarified by the courts, in spite of numerous legal commentaries and federal court decisions specifically discussing this topic. See, e.g., Michael Kent Curtis, Be Careful What You Wish For: Gays, Dueling High School T-Shirts and The Perils of Suppression, 44 WAKE FOREST L. REV. 431 (2009); Amanda L. Houle, Note: From T-Shirts to Teaching: May Public Schools Constitutionally Regulate Antihomosexual Speech, 76 FORDHAM  L. REV. 2477(2008);Cindy Lavorato & John Saunders, Public High School Students and Free speech: Untangling the Knots, 209 Ed.Law Rptr. 1 (July 13, 2006);  Ralph D. Mawdsley, Sailing the Uncharted Waters of Free Speech Rights in Public sSchools: The Rocky Shoals and Uncertain Currents of Student T-shirt Expression, 219 Ed.Law Rptr. 1 (June 28, 2007); Perry A. Zirkel, T-shirts and the First Amendment,   207 Ed.Law Rptr. 825 (June 1, 2006).

Interestingly, the Second Court did not rely on Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) in reaching its decision about Doninger’s blog post, which referred to school officials as “douchebags,” in spite of the Bethel Court’s clear instruction that schools can censor student speech that is lewd, offensive, or indecent. Apparently, the fact that Doninger delivered her message in an off-campus blog communication and not on the school campus persuaded the Second Circuit that Bethel was not an appropriate decision to rely on in this case.