School Can Punish Student Who Called Staff 'D-Bags'

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NEW YORK --- A Connecticut high school did not chill a student's free speech by barring her from running for student council secretary after she called administrators douche bags in a blog post, the 2nd Circuit ruled. 

The three-judge panel's 37-page decision puts more than two years of legal wrangling to rest in a case of student politics that navigated the hallways of a Burlington high school to a local television airwaves to a federal appeals court. 

At 2007 meeting, Lewis S. Mills High School administrators told Junior Class Secretary Avery Doninger that students would have to relocate or reschedule the school's annual battle-of-the-bands concert, Jam Fest. 

Immediately after the meeting, Doninger and three other students sent a mass e-mail from the computer lab - using a parent's e-mail account - asking students to call the central office to complain. They later sent another message with the superintendent's e-mail address and phone number. 

Principal Karissa Niehoff confronted Doninger about the e-mails in her office later that day. While Doninger claims Niehoff canceled Jam Fest in that meeting as punishment, Niehoff says she merely scolded Doninger for breaking a school policy that forbids students from using personal e-mail accounts in the computer lab.

That night, Doninger wrote in her blog, "jamfest is cancelled due to douchebags in central office." 

A classmate called Superintendent Paula Schwartz a "dirty whore" in the comments section of the post, which was hosted by, a popular social-networking site.

As phone calls and e-mails flooded school officials' offices the next morning, a group of rowdy students gathered outside the administration's office to protest. 

Niehoff and Schwartz later testified that the mini-uprising made them miss meetings. Jamf Fst was rescheduled, and Doninger sent students another e-mail stating that the problem had been resolved. 

All was well until administrators discovered the angry Livejournal post two weeks later, at which point Niehoff barred Doninger from running for senior class secretary. 

The day before the student election, Doninger and her mother spoke to a local reporter at a TV news station about the incident. Later that day, during a civics class, one of Doninger's supporters was sent to the principal's office for shouting, "Everybody watch the news at 6." 

On election day, Niehoff forbade students from wearing "Vote for Avery" T-shirts to a school assembly. 

Though Doninger won the election as a write-in candidate, administrators refused to recognize the results. The teenager sued the school through her mother in Connecticut Superior Court, demanding an injunction. The action later moved to District Court, and hit the 2nd Circuit back in 2008.

When Doninger graduated, the injunction request became moot, but she continued to pursue money damages for alleged constitutional violations. 

The District Court found that the school was within its rights to discipline Doninger for the blog post, but ruled that the T-shirts may have been protectable speech. 

Doninger appealed the dismissal to the 2nd Circuit, which upheld the dismissal involving the blog posts and also tossed the claim involving the T-shirts. 

"The law governing restrictions on student speech can be difficult and confusing, even for lawyers, law professors, and judges," the unsigned decision states.      

The three-judge panel noted that the Tinker v. Des Moines Independent Community School District precedent, which protects public schools from becoming "enclaves of totalitarianism," does not apply here. 

"[T]he record here does not suggest, much less show, the Lewis S. Mills High School to be anything remotely resembling an 'enclave[] of totalitarianism,' or that the defendant school officials acted in a way that suggested a claim to 'absolute authority over their students,'" the ruling states. "We conclude that, in the circumstances here, reasonable school officials could disagree about the potential for a substantial disruption of the assembly as a result of permitting students to wear the t-shirts inside. Accordingly, Defendants are entitled to qualified immunity."

From Courthouse News