2nd Circuit sides with Conn. school in dispute over off-campus speech

Tuesday, April 26, 2011

A federal appeals court ruling in favor of Connecticut school officials who disciplined a student for a caustic Internet posting gives considerable latitude to administrators who are tempted to limit comparable speech.

The 2nd U.S. Circuit Court of Appeals ruled that administrators at Lewis S. Mills High School in Burlington, Conn., acted in an “objectively reasonable” manner in punishing Avery Doninger. The three-judge panel handed school officials a victory not by concluding the student’s First Amendment weren’t violated — they didn’t get to that — but by concluding that government officials could not be sued unless they acted incompetently or with a clear knowledge that they were violating the student’s rights.

Doninger was angered by a school decision not to permit a musical event in the school auditorium because of the unavailability of technical support. She derided school administrators in a post on LiveJournal.com and urged fellow students to call officials with complaints.

In a matter of days, the dispute over the timing and location of the musical event was settled. But then the school’s principal came across Doninger’s then two-week old post.

The result: The school barred Doninger from running for class office, and when she won a plurality of votes as a write-in candidate, they awarded the position to the second-place finisher. Students who supported Doninger wore T-shirts at the election assembly that said “Team Avery” and “Support LSM free speech,” and were ordered to remove them.

The appeals court chose to focus on whether school officials could have known they were possibly violating Doninger’s rights. It’s well established that school administrators can limit free expression in a school setting when it poses significant disruption to school operations. It’s also established that administrators cannot punish students for off-campus speech that has no impact on the school.

The key question in this case was whether school officials could punish Doninger for an off-campus posting directed toward fellow students and criticizing school administrators. Rather than grapple with that question, the appeals court essentially said that the law is somewhat unsettled and as a result, the school couldn’t have been certain it was violating Doninger’s rights.

The appeals panel acknowledged that Doninger probably had a stronger case concerning the censorship of T-shirts, noting “a reasonable fact-finder could conclude that [the school was] mistaken.” But then the panel goes on to “conclude that any such mistake was reasonable.”

Here’s the takeaway for school officials: You can punish students for any off-campus speech that you reasonably believe could disrupt the school. You may be wrong, but you can’t be sued for it.

This is a significant setback for those who believe that absent the specific threat of violence or significant disruption, students should enjoy the full exercise of their First Amendment rights in America’s public schools.

One irony to the case is that Doninger’s punishment was justified on the grounds that she was not engaging in “good citizenship.” She was a member of the student council, was upset about the school’s failure to schedule an arts activity for students, spoke out about what she believed to be misconduct by government employees and tried to run for public office. Outside the four walls of a public school, that activity would be the very definition of a good and engaged citizen.

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