Student Loses First Amendment Fight To Call School Officials “Douchebags” After Four Years Of Litigation–Doninger v. Niehoff (Guest Blog Post)
By John E. Ottaviani*
*John Ottaviani is a partner in the firm of Edwards Angell Palmer & Dodge, LLP, and is an occasional guest blogger. The opinions expressed are his own, and are not attributable to his Firm, to Eric Goldman or to any other organization.
Doninger v. Niehoff, No.09-1452-cv (L) (2d Cir. Apr. 25, 2011)
Maybe it’s just a sign of the times. Why would anyone spend four years and who knows how much money making a federal case over a high school’s refusal to permit a girl to run for Senior Class Secretary in response to her off-campus blog post in which she called school officials “douchebags”? If the Internet had been around when we were in high school and I did something like that, my parents would have ensured that my consequences would have been swift and immediate, and most likely physically painful.
The basic facts are not too complicated, although there are differing accounts as to some of the facts. In the Spring of 2007, Ms. Doninger (then a junior at Lewis S. Mills High School in Burlington, Connecticut) and other Student Council members were planning an annual battle-of-the-bands concert called “Jamfest.” Several days before the event, the students were told that the concert would either have to be moved to the smaller cafeteria or rescheduled, due to the unavailability of the teacher responsible for operating the school’s sound and lighting equipment in the auditorium.
Acting like typical teenagers with no impulse control, the students (including Ms. Doninger) accessed a personal e-mail account from the school’s computer lab (in violation of a written school policy) and sent a mass e-mail alerting parents, students and others that the concert could not be held in the school auditorium and urging them to contact the administration and ask that the students be allowed to use the auditorium.
Some facts are in dispute about what happened later that day when the school’s principal met with Ms. Doninger. The principal claimed that she told Ms. Doninger that the e-mail was inaccurate, that the student’s could hold the concert in the auditorium at a later date if they did not want to use the smaller cafeteria, and that Ms. Doninger’s conduct was unbecoming of a class officer. Ms. Doninger’s version is that the principal cancelled the concert, with the possibility of rescheduling later “if [the students] play [their] cards right,” and that the principal said nothing about her responsibilities as a class officer.
What is undisputed is that Ms. Doninger went home that night and posted an entry on her LiveJournal blog in which she advised that “jamfest is cancelled due to douchebags in central office …” and urged parents and students to contact the superintendent and principal “to piss her off more.”
A few weeks later, when Ms. Doninger met with her principal to accept her nomination for Senior Class Secretary, the principal asked her to withdraw her candidacy because her behavior violated the principles governing student officers set out in the school’s student handbook. The principal refused to let Ms. Doninger’s name appear on the ballot, to let her speak at a school assembly regarding the election, or to let students wear T-shirts promoting Ms. Doninger’s candidacy. Apparently, Ms. Doninger still won the election with a plurality of the votes cast, but she was not allowed to serve. Ms. Doninger was not otherwise disciplined or suspended from school at any time.
Ms. Doninger’s mother filed a complaint in 2007 in Connecticut state court, alleging violations of Ms. Doninger’s Constitutional rights and state law. The school officials removed the case to federal court. Ms. Doninger then filed a motion for a preliminary injunction asking the court to void the election for Senior Class Secretary and to require a new election. The request for the injunction was denied (514 F. Supp. 2d 199 (D. Conn. 2007)), and the denial was affirmed on appeal (527 F.3d 41). After Ms. Doninger graduated from high school, the request for the injunction was moot, but she amended the complaint to seek damages for the alleged violation of her Constitutional rights. In January 2009, the district court denied Ms. Doninger’s motion for summary judgment and granted the school’s motion in part. (594 F. Supp. 2d 211 (D. Conn. 2009)). [See Eric’s note of the case]. After motions for reconsideration were denied, both parties appealed to the Second Circuit again.
The Second Circuit decision exonerated the school officials on all counts. In particular, the Second Circuit: (1) affirmed the District Court’s holding that the school officials had qualified immunity for the claim that Ms. Doninger’s First Amendment rights were violated when the principal prohibited her from running for Senior Class Secretary; (2) reversed the District Court’s holding that the school officials were not entitled to qualified immunity for the claim that Ms. Doninger’s First Amendment rights were violated when they prohibited her from displaying a “Team Avery” t-shirt in the election assembly: (3) affirmed the District Court’s dismissal of Ms. Doninger’s Equal Protection claim that other student officers were not similarly punished; and (4) affirmed the District Court’s dismissal of Ms. Doninger’s claims based on the Connecticut Constitution.
The Second Circuit spent a good part of the decision discussing the First Amendment issues and the Tinker-Fraser-Hazelwood trilogy of U.S. Supreme Court cases governing student expression. The Second Circuit expressly refused to adopt a rule (urged by Ms. Doninger) that students are completely insulated from discipline for speech-related activity occurring away from school property, no matter its relation to school affairs or its likelihood of having effects in school. But then the Second Circuit avoided deciding whether Ms. Doninger’s First Amendment rights were violated when she was prevented from running for Senior Class Secretary, by finding that the school officials were entitled to “qualified immunity” from the claims.
Under a qualified immunity analysis, a court conducts a two-part inquiry: (1) whether the facts, when viewed in the light most favorable to the plaintiff, show that the official’s conduct violated a Constitutional right; and (2) whether the right at issue was clearly established at the time of the official’s alleged misconduct. If it is objectively reasonable for an official to believe that his or her conduct did not violate such a right, then the official is protected by qualified immunity. The Second Circuit did not reach a conclusion as to whether the school officials violated Ms. Doninger’s Constitutional rights. Rather, the court concluded that any First Amendment right Ms. Doninger may have had “was not clearly established” given the uncertainty in the legal decisions in this area to date, and that the school officials acted reasonably in the circumstances and were thus entitled to qualified immunity from the claims.
Overall, the Second Circuit appears to have reached the proper conclusion here. The court emphasized that the discipline was relatively minor, and that Ms. Doninger’s conduct violated several written school policies to which she had agreed. Ms. Doninger did not simply make the comments orally, on in text messages sent to her friends with some expectation that the school officails would not see them. Rather, she posted her comments on a public website and then made sure school officals would see them by inciting readers to contact the school officials. Unlike some other school discipline cases involving off campus postings or communications (see here and here), the principal here did not overreact. Ms. Doninger was not suspended, and the students were given the choice as to whether to hold the concert on the original date but in the cafeteria, or on a new date in the auditorium. Ms. Doninger was sanctioned because her conduct was viewed as inappropriate for a class officer in that school.
Unfortunately, by avoiding any conclusions on the Constitutional issues, the Second Circuit’s decision did not provide any new practical guidance for the difficult issue as to when a student’s off-campus speech so affects or disrupts school activities that the student can be disciplined in school for the speech. (For example, see Eric’s post from last year where Third Circuit panels reached opposite conclusions on similar facts). Hopefully, the court’s emphatic beatdown of Ms. Doninger’s claims will end this particular dispute, although her attorney has stated that he would take an appeal to the U.S. Supreme Court.
I’m a big defender of the First Amendment, but this case appears to be another example of what we were taught in law school that “bad facts make bad law.” There is no significant freedom of speech issue here, just a refusal by a student and her parent to accept consequences for the student’s bad behavior. Ms. Doninger graduated in 2008, and is now attending college. It’s time to move on.
For additional information and other points of view, some other links: