By ARIELLE LEVIN BECKER
Hartford Courant Staff Writer
May 30, 2008
Ruling in a case that addresses broad questions of the boundaries of free speech in the Internet age, a federal appeals court on Thursday effectively ended a Burlington student's effort to serve as a class officer and speak at graduation.
The ruling by the U.S. 2nd Circuit Court of Appeals in New York only addressed a preliminary issue in the case of Avery Doninger, a senior at Lewis S. Mills High School, who has argued that school district administrators violated her First Amendment rights by disciplining her for a blog post she wrote off school grounds.
But the court's ruling weighed in on a hotly contested and evolving area of the law, freedom of expression on the Internet. The three-judge panel stopped short of declaring how far schools can go in regulating offensive Internet speech made off campus, but stated that the school did not violate the Constitution in disciplining Doninger because her blog post "created a foreseeable risk of substantial disruption" at the school.
Thursday's ruling addressed a request by Doninger's attorney for an injunction to allow Doninger to serve as class secretary, which she was barred from doing because of the blog post. A federal district court judge rejected the request last year, finding that Doninger had not proven a substantial likelihood of challenging the constitutionality of her punishment. The appeals court agreed.
Thomas R. Gerarde, an attorney for defendants Paula Schwartz, the former Region 10 superintendent, and Mills Principal Karissa Niehoff, said the rulings by both courts "exonerated" the school district administrators.
"It's a very, very decided victory for Region 10. There's no other way to look at this," he said.
Jon L. Schoenhorn, Doninger's attorney, said the ruling could "emasculate the First Amendment rights of students."
"If this [blog post] was potentially disruptive, then they might as well empty out half of the schools of not just Connecticut but probably in this country," he said.
Schoenhorn noted that the rulings were based on a limited record and predicted that the courts would rule differently once the full case is heard in a trial.
A disappointed Lauren Doninger, Avery's mother, said she and her daughter had always planned to go to trial for reasons beyond the student government and graduation.
"We filed for an injunction because we really hoped to somehow hold on to part of this senior year experience for Avery," she said. "That's not going to happen, but that doesn't change that we need to move forward to trial. We need to really explore student speech rights at the judicial level in the age of the Internet."
The case originated in a dispute last spring about the Burlington school's Jamfest, a battle of the bands that Doninger helped coordinate. Frustrated that it was not going ahead as planned, Doninger wrote on her livejournal.com Weblog that "Jamfest is canceled due to the douchebags in central office." She encouraged others to write or call Schwartz "to piss her off more."
Jamfest wasn't actually canceled, and was later rescheduled. Administrators found the blog entry about two weeks after Doninger wrote it, and Niehoff told Doninger to apologize to Schwartz, show her mother the post and stop seeking re-election as class secretary.
Doninger agreed to the first two, but refused to withdraw her candidacy. Though Doninger was not allowed to run, enough students wrote in her name that she won. She was barred from serving.
The appeals court based much of its analysis on the 2nd Circuit case Wisniewski v. Board of Education of the Weedsport Central School District in New York, in which a student was suspended after creating an instant-messaging icon that suggested his teacher should be shot. The court upheld the suspension last year, saying it was reasonable to expect the icon would come to the attention of school authorities and could create a risk of substantial disruption to the school environment.
In Doninger's case, the court wrote, the blog post was designed to reach the school campus and generated student response, contained misleading information and could potentially disrupt efforts to resolve the Jamfest controversy.
The disruption the blog post caused, the court wrote, included students getting riled and administrators receiving phone calls and e-mails that made them miss or come late to school-related activities.
Even so, the ruling said, the relevant issue was not whether disruption occurred but whether school officials "might reasonably portend disruption."
Schoenhorn said he was concerned with the application of the Wisniewski case, which involved a threat to shoot a teacher, to Doninger's writing.
"They appear to equate words with bullets," he said. "And that is a scary prospect to me."
The court also emphasized that Doninger's discipline barred her from an extracurricular activity, and that the blog post was inconsistent with the school's policy that student government representatives have a record of good citizenship.
The case did not allow the court to consider "whether a different, more serious consequence than disqualification from student office would raise constitutional concerns," the ruling stated.