Wednesday, July 18, 2007

Limits Of Student Speech

And School Authority

Rhymes With Right

As you can see, part of the issue here is that the campus and district administration took offense at the fact that students would engage in speech to encourage others to petition public officials for a redress of grievances. I've no doubt that Principal Niehoff and Superintendent Schwartz were takena back that mere students would challenge their authority, and that they were then looking for a way to get back at the student signatories to the email. The problem is that this constitutes the very sort of speech that the First Amendment is intended to protect -- the right of citizens to make their voices heard by public officials.

That Avery Doninger then proceeded to write a blog entry some six hours after the end of the school day, using her own computer in her own home appears significant here. While her subject was a decision by the school to cancel the event, she was again speaking out on a matter of public concern and urging others to engage in lawful conduct to petition school officials for a redress of grievances. Again, that is the use of the First Amendment in a pure and clearly protected fashion -- and even the use of the (misspelled, uncomplimentary, but non-obscene) term "douchbag" does not remove First Amendment protection from her writing (remember Cohens v. California -- even the use of an F-bomb in a political context is ordinarily protected speech).

School officials, in my eyes, have crossed two very bright lines here. First, given the fact that the speech in this case falls in the realm of political speech on a matter of public importance (the operation of a public school and the decisions of public school officials on scheduling/canceling an event), any punishment, including the revocation of what school officials label as a privilege, constitutes an abridgment of freedom of speech.

Second, the fact that the speech for which Avery Doninger is being punished occurred entirely off campus, there is really not a sufficient nexus between it and the school for the administration to even involve itself. If, for example, the student had referred to Hillary Clinton as a "douchbag", could the school have taken action? I think the answer is clearly negative --and indeed the school would not have tied to do so. Indeed, I'm reasonably confident that no action would have been taken had the young lady "flipped the bird" at a teacher in the parking lot of a local grocery store on a Saturday afternoon. It therefore cannot be said that her lack of respect for school authorities was the basis for her punishment.

No, what you have here is a pair of administrators taking personal offense at being challenged by a student, and choosing to make an example of her. In doing so, they intruded not just upon the student's First Amendment rights, but also upon the right of her mother to to discipline (or not discipline) her for legal activities permitted (or not permitted) in the home. Just as the school cannot impose a 24-hour dress code without violating the rights of the students and the parents, they cannot impose a 24-hour speech code, either. If, as held by the much circumscribed decision in Tinker v. Des Moines, students do not shed their liberties upon entering the schoolyard, the school has an even less pressing interest in regulating those liberties outsideof school hours and away from the school grounds. Furthermore, since there was not even a hint of unlawful activity suggested in the blog entry, even the recently approved limits on student rights found in Morse v. Frederick do not seem to be applicable here.

By the way, I'd like to point out that, if the facts are as presented here (and the district seems to confirm them with their response to the suit), I'd argue that Avery Doninger pegged Principal Karissa Niehoff and Superintendent Paula Schwartz just about right. While I would question her use of the term "douchebag", their later actions show that she correctly understands them as power-maddened little totalitarians who fail to understand the limits of their authority and the scope of the First Amendment. They need to remember that Avery Doninger and her peers are students on the cusp of adulthood, not prisoners in a maximum security institution. As such, I'll be following this case closely and hoping to see Niehoff and Schwartz righteously slapped-down by every court in which this case is heard.

Excellent coverage at the case can be found at The Cool Justice Report:
Douche Bag Case In Court
Douche Bag Reprise
Police State Tactics
Principal DB Ducks
Write-In Vote Buried
Who Took The Call
Bill of Rights
Failure To Educate

MORE AT ProfsBlawg, Appellate Law & Practice

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