Sotomayor, Day Two, (pt I)

Student versus Douchebags.
Doninger v Neihoff
http://www.citmedialaw.org/sites/citmedialaw.org/files/2008-05-29-Doninger%20Second%20Circuit%20Opinion.pdf

"Avery Doninger (“Avery”), was disqualified from running for Senior Class Secretary after she posted a vulgar and misleading message about the supposed cancellation of an upcoming school event on an independently operated, publicly accessible web log (or “blog”)."

and

"Because Avery’s blog post created a foreseeable risk of substantial disruption at LMHS, we conclude that the district court did not abuse its discretion."

The characterization of the "vulgar and misleading" bothers me, as does the "foreseeable risk of substantial disruption".

But:


"Doninger, alleging principally a violation of her daughter’s First Amendment rights, moved for a preliminary injunction voiding the election for Senior Class Secretary and ordering the school either to hold a new election in which Avery would be allowed to participate or to grant Avery the same title, honors, and obligations as the student elected to the position, including the privilege of speaking as a class officer at graduation. The district court denied the motion, concluding that Doninger had failed to show a sufficient likelihood of success on the merits."

{Which may seem a little flaky asking the court to do that, but it's later revealed that as a write-in candidate Avery still won, even without campaigning or having her name on the ballot.}

Additional Info:
Student council had rescheduled Jamfest- a battle of the bands- twice. On the new date, the teacher- who was to run lighting and sound- was unavailable. Administrators wanted it moved to the cafeteria or the date changed. Student Council said the cafeteria would require acoustic instruments and problems for the bands who would need to change their sets. Student Council also worried that changing the date would cause bands to drop out of the competition.

Avery, and three other Student Council members, got on one of their father's email accounts, and informed the broader community "to the Jamfest situation and enlisting help in persuading school officials to let Jamfest take place in the auditorium as scheduled. The four students met at the school’s computer lab that morning and accessed one of their fathers’ email account. They drafted a message to be sent to a large number of email addresses in the account’s address book, as well as to additional names that Avery provided. The message stated, in substance, that the administration had decided that the Student Council could not hold Jamfest in the auditorium because Miller was unavailable. It requested recipients to contact Paula Schwartz, the district superintendent, to urge that Jamfest be held as scheduled, as well as to forward the email “to as many people as you can.” All four students signed their names and sent the email. The message was sent out again later that morning to correct an error in the telephone number for Schwartz’s office."

The Principal was mad. Avery says the principal told her she was very upset and that Jamfest would be cancelled. The principal says that's not true. The principal was upset the student council didn't come to her or the superintendent first. "[The Principal] testified that class officers are expected to work cooperatively with their faculty advisor and with the administration in carrying out Student Council objectives. They are charged, in addition, with “demonstrat[ing] qualities of good citizenship at all times.”" District Court found for the Principal, on what was/wasn't said. Avery and Principal Niehoff, according to the principal, decided a corrective email would be sent out that night.

"That night, however, Avery posted a message on her publicly accessible blog, which was hosted by livejournal.com, a website unaffiliated with LMHS"

"jamfest is cancelled due to douchebags in central office. here is an
email that we sent to a ton of people and asked them to forward to
everyone in their address book to help get support for jamfest.
basically, because we sent it out, Paula Schwartz is getting a TON of
phone calls and emails and such. we have so much support and we
really appriciate it. however, she got pissed off and decided to just
cancel the whole thing all together. anddd so basically we aren’t
going to have it at all, but in the slightest chance we do it is going to
be after the talent show on may 18th. andd..here is the letter we sent
out to parents."

She posted the original letter, then:

"And here is a letter my mom sent to Paula [Schwartz] and cc’d
Karissa [Niehoff] to get an idea of what to write if you want to write
something or call her to piss her off more. im down.—"

"Avery testified before the district court that “im down” meant that she approved of the idea of others contacting Schwartz to “piss her off more.” She stated that the purpose of posting the blog entry was “to encourage more people than the existing e-mail already encouraged to contact the administration” about Jamfest. The district court concluded that the content of the message itself suggested that her purpose was “to encourage her fellow students to read and respond to the blog.” Id. at 206. The district court also noted that “[s]everal LMHS students posted comments to the blog, including one in which the author referred to Ms. Schwartz as a ‘dirty whore.’” Id. at 206-07."

There was a meeting. Jamfest was rescheduled. Avery says they didn't mention the propriety of mass emails to criticize the administration.

"According to the district court, however, Schwartz and Niehoff “at the very least, made clear to the students that appealing directly to the public was not an appropriate means of resolving complaints the students had regarding school administrators’ decisions.” Id. at 207. The district court also found that, as a result of the Jamfest controversy, both Schwartz and Niehoff were forced to miss or arrived late to several school-related activities scheduled for April 24 and April 25."

[ASIDE] Are you noticing a pattern, here? Anytime the kid disagrees with the "adults" the kid is wrong.... I wish I could see the actual court records to discover why that was. I'm not sure there are many kids who could, or would, lie under oath on the stand at a District Court. After all, according to the Army, 85% of people break- are unable/unwilling to resist telling the truth- on direct questioning. Anyway... [/aside]

The superintendent's adult sun used a search engine and found the blog post a few days later. The superintendent showed the principal, who researched Conn. education law, and the school's policies. The principal decided that due to the "vulgar" and "inaccurate" information in the post, and due to Avery not taking her counsel on how to appropriately deal with addressing issues of concern, "Niehoff concluded that Avery’s conduct had failed to display the civility and good citizenship expected of class officers." "Niehoff decided that Avery should be prohibited from running for Senior Class Secretary. Because Avery had Advanced Placement exams at that time, however, Niehoff chose not to confront her immediately."

A few weeks later, Avery goes to accept her nomination as Senior Class Secretary. Niehoff hands her a print out of the blog post. Demands a written apology tot h superintendent, that Avery show the post to her mother, and that Avery withdraw her nomination. Avery complies with the first two portions. Niehoff withholds Avery's administrative endorsement, "which effectively prohibited her from running for Senior Class Secretary, though Avery was permitted to retain her positions as representative on the Student Council and as Junior Class Secretary."

Niehoff says her decision was based on:
"(1) Avery’s failure to accept her counsel “regarding the proper means of expressing disagreement with administration policy and seeking to resolve those disagreements”; (2) the vulgar language and inaccurate information included in the post; and (3) its encouragement of others to contact the central office “to piss [Schwartz] off more,” which Niehoff did not consider appropriate behavior for a class officer"

"Even though she was not permitted to be on the ballot or to campaign, Avery received a plurality of the votes for Senior Class Secretary as a write-in candidate. The school did not permit her to take office, however, and the second-place candidate became class secretary for the Class of 2008."

Avery's mom sued.

"Schwartz and Niehoff removed the action to the District of Connecticut. Doninger filed a motion for a preliminary injunction. The district court developed the facts outlined here from exhibits, affidavits, deposition testimony, and the hearing testimony of ten live witnesses, including students, faculty, administrators, and parents. The district court concluded that a preliminary injunction was not warranted because Doninger did not show a sufficient likelihood of success on the merits. This appeal followed."

Discussion:

The court agrees that there's been harm to Avery's First Amendment Rights; but the second part of the question is whether Avery's mom's suit has "demonstrated a clear or substantial likelihood of success on the merits."

"The Supreme Court has yet to speak on the scope of a school’s authority to regulate expression that, like Avery’s, does not occur on school grounds or at a school-sponsored event. We have determined, however, that a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct “would foreseeably create a risk of substantial disruption within the school environment,” at least when it was similarly foreseeable that the off-
12 campus expression might also reach campus. Wisniewski v. Bd. of Educ., 494 F.3d 34, 40 (2d Cir. 2007), cert. denied, 128 S. Ct. — (2008).[size=85]1[/size]"

[size=85]1[/size] The Wisniewski panel divided on the question whether it was necessary in that case to show that it was reasonably foreseeable that the expression at issue would reach school property. Two panel members concluded that the undisputed fact that it did so “pretermit[ted] any inquiry as to this aspect of reasonable foreseeability.” 494 F.3d at 39.

"[A]s Judge Newman accurately observed some years ago, “territoriality is not necessarily a useful concept in determining the limit of [school administrators’] authority.” [Thomas v Board of Education]. True enough in 1979, this observation is even more apt today, when students both on and off campus routinely participate in school affairs, as well as in other expressive activity unrelated to the school community, via blog postings, instant messaging, and other forms of electronic communication."

The court says, essentially, that the blog post [i]could[/i] make its way onto school grounds- which would mean the case falls under Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986) {or Fraser} which says that a student's offensive, vulgar, speech is not protected while on school grounds, even if that speech would be protected for an adult. It says that, in fact, since other students posted comments on Avery's blog, this is extremely likely.

The court says that the materials [i]could[/i] cause a disruption- and that the materials did, by making two people late to a couple meetings.

Therefore, as established in previous case law (from the 60s, 70s, and 80s) Avery's First Amendment rights don't protect her because this was all a school matter, under school jurisdiction and territoriality, effectively.

"[The case] bears similarity to Lowery v. Euverard, which involved a group of high school football players who were removed from the team after signing a petition expressing their hatred of the coach and their desire not to play for him. The players lodged a First Amendment claim and the Sixth Circuit determined that the relevant question under Tinker was whether it was reasonable for school officials “to forecast that the petition would disrupt the team” — meaning that the petition might foreseeably frustrate efforts to teach the values of sportsmanship and team cohesiveness through participation in sport as an extracurricular activity. Lowery, 497 F.3d at 593, 596. The court noted that the players had not been suspended from school or even prevented from further criticizing the coach: “[T]hey are free to continue their campaign to have Euverard fired. What they are not free to do is continue to play football for him while actively working to undermine his authority.” Id. at 600 (emphases omitted). The court held that there had been no First Amendment violation."

Also, because there's no evidence that any of the other Student Council members wrote a blog post, or a similar kind of message, like Avery; Avery has no standing under equal protection for her mom's class-of-one claim.

Finally:
"We are sympathetic to [Avery's] disappointment at being disqualified from running for Senior Class Secretary and acknowledge her belief that in this case, “the punishment did not fit the crime.” Doninger, 514 F. Supp. 2d at 202 (internal quotation marks omitted). We are not called upon, however, to decide whether the school officials in this case exercised their discretion wisely. Local school authorities have the difficult task of teaching “the shared values of a civilized social order” — values that include our veneration of free expression and civility, the importance we place on the right of dissent and on proper respect for authority. Fraser, 478 U.S. at 683. Educators will inevitably make mistakes in carrying out this delicate responsibility. Nevertheless, as the Supreme Court cautioned years ago, “[t]he system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members,” and we are not authorized to intervene absent “violations of specific constitutional guarantees.” Wood v. Strickland, 420 U.S. 308, 326 (1975). The judgment of the district court is therefore affirmed."

My Conclusion:
Sotomayor didn't write the opinion, so bare that in mind. The finale seems to articulate things rather concretely.

HOWEVER, The usage of prior case law was spurious. In twenty-thirty years all that shit, and this case, will be superseded by a new generation of federal judges who will have grown up with modern technology. The internet is NOT the school. And just because my friends and me talk online, doe NOT make it inherently public communication. Those are OLD concept that do not address modern technological realities of the internet. It's the SCHOOL's responsibility to block access to sites like livejournal. Not the student's responsibility to confer with School Administrators and DISTRICT COURT JUDGES before posting their thoughts on their blog.

The person who found the blog was actively searching for it or something very similar. It takes some understanding of how search engines work, and crawl sites like livejournal, to really grasp this. This is part of the reason I'd like to see transcripts of the case. To figure out EXACTLY what this adult son of the superintendent was looking for, and why.

Also, my anecdotal experiences with fucked up school principals lead me to think that the Administrators are bullshitters- with the authority of their titles- saying "oh, she's just a kid, of COURSE I didn't say THAT! She only took it that way!" But it's also true that one person can say one thing and another can hear something completely different.

In the end, I think it's the Judges inability to really comprehend that The internet is not the same as a 'zine or a pamphlet. This case SHOULD have provided precedence protecting the rights of students to post private thoughts of their blogs, and email their friends. If Avery had been on a conference call with a bunch of her friends, and said even worse things, we'd never have known it and she wouldn't have had to correct it, and she'd have graduated as her Senior Class Secretary. But, instead, READING and WRITING got the STUDENT in trouble. Good Job, assholes. Way to be full of fetid fail...