Judge Rules On Student's Slur
NEW HAVEN - Avery Doninger may have been off campus when she wrote an Internet post calling officials in her Burlington school district a derogatory name.
But school officials were within their rights when they punished her for the comment as if she had made it on campus, a federal judge ruled Friday, because Doninger's writing related to school and was likely to be read by other students.
U.S. District Judge Mark Kravitz's ruling marked the court's first stance on a lawsuit that Doninger's mother, Lauren, filed against two officials in the Region 10 school district after Avery Doninger, then 16, was prohibited from seeking re-election as secretary for her class at Lewis S. Mills High School in May. Punishing Avery Doninger for the comment - she called school officials "douchbags" (sic) in her Internet blog - violated her right to free speech, the Doningers argued.
Friday's ruling didn't decide the case, but resolved a request by Doninger's attorney for an injunction to allow Avery Doninger to run for class secretary. Kravitz's ruling denying the request noted that Doninger had not shown "substantial likelihood" that she would succeed in challenging the constitutional validity of her punishment.
But Kravitz's ruling also foreshadowed a case involving far more than a misspelled insult posted on the Internet. It concerns what kind of expression schools can regulate, whether schools can sanction behavior outside school, and just what can be considered on- or off-campus in the Internet age.
"The whole issue of blogs and off-campus e-mails is coming to the fore. Courts themselves are kind of feeling their way along," Kravitz said in court Friday. "These are difficult issues."
Doninger's attorney, Jon L. Schoenhorn, warned that Kravitz's ruling has dangerous implications for students' speech. "Any student anywhere, in an e-mail or IM or blog, a letter to a friend, maybe orally in a conversation at McDonald's, who makes any kind of vulgar or offensive remark about the school or anyone in it, the school can track them down and take some action," he said.
Schoenhorn said he plans to appeal Friday's ruling.
Doninger was junior class secretary in April when a dispute over the school's battle of the bands-type jam session led to her now-infamous comment. After talks with school officials made it clear the school's "Jamfest" might not go forward as planned, Doninger wrote on her livejournal.com Web log, "Jamfest is canceled due to the douchbags in central office." She also encouraged others to write or call Region 10 Superintendent Paula Schwartz "to piss her off more."
A few weeks later, Principal Karissa Niehoff told Doninger to apologize to Schwartz, show her mother the blog entry, and remove herself from seeking re-election as class secretary. Doninger agreed to the first two points, but refused to withdraw her candidacy. Niehoff then told Doninger she would not provide an administrative endorsement of her candidacy, barring her from the race, according to Kravitz's ruling.
Kravitz wrote that the court's role was not to weigh in on the type of punishment, but whether the school could legally discipline Doninger for her writing. On that matter, the two sides cited differing legal precedents.
Schoenhorn pointed to a 1969 U.S. Supreme Court ruling that said disruptive conduct by students was not constitutionally protected. Schools, however, could prohibit certain expression only if they could show that not doing so would interfere with schoolwork or discipline.
Attorneys for the school district, meanwhile, cited another standard, set by the U.S. Supreme Court in 1986, allowing schools to prohibit "vulgar and lewd speech" if it would undermine the school's basic educational mission - including "teaching students the boundaries of socially appropriate behavior."
In both those cases, the behavior took place in school, while Doninger's comments did not, Kravitz noted. But he wrote that Doninger's comments should be considered on-campus speech because they addressed school issues and were likely to be read by other students.
Courant Staff Writer Rick Green contributed to this story.
Contact Arielle Levin Becker at alevin-becker@courant.com.
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Copyright © 2007, The Hartford Courant
Flag of Connecticut
On August 31, United States district court judge Mark Kravitz ruled against Burlington, Connecticut high school student Avery Doninger's request for a preliminary injunction to let her function as class secretary at Lewis S. Mills High School. Doninger had won the Class Secretary position at the high school. Earlier Doninger had posted derogatory comments on her blog about school officials and the school administration did not allow her to take the position as Class Secretary. Doninger alleges that the school's actions violated her First Amendment right to free speech.  

Also at issue is whether Doninger's use of the school's email system for an earlier mass email played a part in the school's decision. The school claims that the email led to serious disruption while Doninger claims that the email was only cited retroactively.

Kravitz ruled that there was not a substantial likelihood that Doninger would win her case against the school and thus declined to grant the injunction. Kravitz stated that although Doninger did not write the blog entry while on-campus, "Avery's blog entry may be considered on-campus speech for the purposes of the First Amendment." Kravits reasoned that the blogs' arguable on-campus nature together with Supreme Courts precedents that students have more limited free speech rights while on campus combined to give Doninger a weak case. 

The ruling has been criticized, with some observers arguing that by Kravitz's logic, almost any online speech by students can be severely restricted by school administrators. This ruling is a setback to Doninger, although she and her family stated that they intend to appeal the injunction and also continue with their lawsuit.

Doninger's case gained national attention earlier after Doninger set up a website to appeal for donations to help with legal fees associated with the cause. The exact limits of students free speech rights in public schools has been a matter of controversy since 1969 when in Tinker v. Des Moines Independent Community School District the United States Supreme Court ruled that students have some free speech rights in schools. In later cases, such as Bethel School District v. Fraser, and  Morse v. Frederick, colloquially known as the "Bong Hits 4 Jesus" case, the Supreme Court ruled that students in public schools while engaging in actions on campus or otherwise affiliated with the school do not enjoy the complete First Amendment protections that would normally apply to citizens in other circumstances.