If a student posts a blog on the internet that speaks badly of school officials and encourages people to contact the school in protest of the school officials actions, after being instructed on the proper course of action for a grievance, can the school take action against the student? This is precisely the set of facts before the Second Circuit Court of Appeals in Doninger v. Neihoff, et al.i
In Doninger, Avery Doninger was on the student council of her high school. She and other council members became upset when “Jamfest,” a student concert, was cancelled because a faculty member was unavailable to monitor the music equipment. The students were told that the event could be rescheduled, but the students were not happy with this solution.
Four student council members, including Avery, decided that they would enlist the help of the broader community in persuading the school officials to accept a different solution to the issue. They met at the school computer lab, accessed one of their father’s email accounts, and proceeded to send an email to the effect that Jamfest was cancelled because a faculty member was unavailable to work the event. The email then urged the recipients to contact Ms. Schwartz, the school district superintendent to urge her that Jamfest be held as scheduled. Lastly, the students encouraged the recipients to send this message to as many people as possible. The four students signed the email and sent it out.
Due to the influx of phone calls to Schwartz and Niehoff, the principal, Niehoff was called back to the school away from training that she was attending.
Niehoff met with Avery and told her that she was dissapointed that the student council member would resort to a mass email rather than speaking directly to her. Further, she reminded Avery that class officers are expect to work with their faculty advisor and demonstrate “qualities of good citizenship at all times.” Niehoff reminded Avery that the event could be rescheduled in the auditorium and that she should send out a corrective email, to which Avery agreed.
However, that night, rather than sending a corrective email, Avery posted a message on a website unaffiliated with the school that read the following:
jamfest is cancelled due to douchebags in central office. here is an email that we sent 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 it. however, she got pissed off and decided to just cancel the whole thing all together. anddd 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. and..here is the letter we sent out to parents.... And here is a letter my mom sent to Paula [Schwartz] and cc'd Karissa [Niehoff] to get an idea of what to write if you want to write something or call her to piss her off more. im down.
Avery also reproduced a letter and an email sent by her mother to the school.
When asked about the blog, Avery said that “im down” meant that she wanted others to contact Ms. Schwartz to “piss her off more.” She also said that the intent of her message was to “encourage more people than the existing email already encouraged to contact the administration” about Jamfest. Additionally, several students posted comments to the message, including calling Ms. Schwartz a “dirty whore.”
Jamfest was rescheduled the day after this email was sent. It took place on June 8th, and despite this fact, Schwartz and Niehoff continued to receive phone calls and emails from concerned citizens about the event. Niehoff, upon later learning of the message that Avery posted, concluded that she had “failed to display the civility and good citizenship expected of class officers.” Because of this, Avery was not permitted to run for Senior Class Secretary. The reasons that Niehoff cited for her decision were the following: “(1) Avery's failure to accept her counsel "regarding the proper means of expressing disagreement with administration policy and seeking to resolve those disagreements"; (2) the vulgar language and inaccurate information included in the post; and (3) its encouragement of others to contact the central office "to piss [Schwartz] off more," which Niehoff did not consider appropriate behavior for a class officer.”
Avery’s mother filed suit on her behalf and sought an injunction to allow Avery to participate in the election due to a violation of her First Amendment rights.
In order to prevail on a claim for an injunction a party must demonstrate (1) a likelihood of irreparable harm in the absence of the injunction, and (2) either a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation, with a balance of hardship in the plaintiffs favor.ii
The Second Circuit first noted that the loss of First Amendment rights, even for short periods of time, usually constitutes sufficient irreparable harm sufficient to meet the first requirement for an injunction.
The court next had to examine whether there was a likely First Amendment violation by the schools action. The primary First Amendment school case is Tinker v. Des Moines Ind. Sch. Distiii, in which the United States Supreme Court held that school can regulate student speech or expression that is likely to substantially interfere with the educational environment. In this case, the prohibition of black arm bands worn in protest of the Vietnam War was held to violate the First Amendment rights of students because a substantial disruption to the educational environment could not be shown. Additionally, the United States Supreme Court held, in Bethal Sch. Dist. 403 v. Frasieriv, that offensive forms of expression or communication that occur at school could be prohibited. However, the Supreme Court has not spoken on the issue of offensive off-campus speech that has an impact on-campus.
The Second Circuit Court of Appeals has applied these Supreme Court rules to off-campus speech that had a serious and disruptive impact on-campus. In Wisniewski v. Bd. of Educ.v, an eighth grader's off-campus creation and Internet transmission to some fifteen friends of a crudely drawn icon that "depict[ed] and call[ed] for the killing of his teacher."vi The court held that
off-campus conduct of this sort "can create a foreseeable risk of substantial disruption within a school" and that, in such circumstances, its off-campus character does not necessarily insulate the student from school discipline...because it was reasonably foreseeable that the icon would come to the attention of school authorities and that it would create a risk of substantial disruption.vii
The Court of Appeals, in the case at hand, then applied this principle to Avery’s postings. They reasoned that Avery intended for people to respond to her postings by contacting the principal on-campus. In fact, other students and members of the community did respond to the posting by either commenting or contacting the principal and school administration.
The court also reasoned “that Avery's posting "foreseeably create[d] a risk of substantial disruption within the school environment."viii The court then reviewed three factors that they considered in reaching this conclusion. First, the court considered the specific language used by Avery in her blog postings. For example she referred to the administrators as “douchebags” and urged people to contact the administrators to “piss them off” more. This language used by Avery was not language that indicated contact for the purpose of conflict resolution, but rather, it was language intended to influence others to contact the school to create a disruption.
The second factor the court considered was that the information in Avery’s postings was misleading at best and false at worst. Her postings indicated that Jamfest was cancelled rather than re-scheduled. Avery admitted that she knew that students were “riled” up about the information she was posting. Further, Schwartz and Niehoff both had to miss or be late to various school events and meetings in order to deal with this problem and student government officers, such as Avery, had to miss some classes in order to deal with the problems created by Avery’s postings.
The third factor considered was the fact that the discipline rendered in this case was directly related to her participation in extracurricular student government. Participation in extracurricular programs is considered a privilege and participation can be properly restricted when a student fails to comply with the requirements of the particular activity. In this case, “Avery's conduct risked not only disruption of efforts to settle the Jamfest dispute, but also frustration of the proper operation of LMHS's student government and undermining of the values that student government, as an extracurricular activity, is designed to promote.”ix This, the court determined, was in accordance with the standard set forth by the Supreme Court in Tinker and Hazelwood Sch. Dist. v. Kuhlmeier.x
In light of the above considerations, the Second Circuit Court of Appeals held that Doninger failed to demonstrate a significant likelihood of success on the First Amendment claim in the suit and therefore it was not an abuse of the district courts discretion to deny the request for injunctive relief.
i 527 F.3d 41 (2nd Cir. 2008)
v 494 F.3d 34 (2nd Cir. 2007)
viii Doninger, 527 F.3d at 50
x 484 U.S. 260 (1988)(held that “educators may exercise control over school-sponsored expressive activities "so long as their actions are reasonably related to legitimate pedagogical concerns").