The ruling that denied a request for a preliminary injunction was narrow in a technical sense, though it gave school officials some breathing room. A hearing on that issue could happen in January in New York while the core case could go to trial in New Haven this fall. The ruling merely denied an immediate remedy. That remedy would have noted civil rights violations -- including the seizure of free-speech t-shirts cited by a U.S. District judge -- and it would have recognized the suppressed write-in vote in which Avery Doninger won election by a plurality.
The Doningers began contemplating legal action only after Superintendent Schwartz and Principal Niehoff rejected repeated pleas to consider alternate solutions.
Thibault wishes he could take credit for this legal action, which he wholeheartedly supports. However, full credit is due to the intransigent, incompetent and morally bankrupt Region 10 Board of Education and administration.
See "Travesty," "Douche Bag In A Coal Mine," "School Officials Tampered With Disciplinary Records" "JI Story On Write-In Win," "Liars, Damn Liars & School Officials Part 2" and other links at bottom.
“Schools drill into your head your basic amendments, but you don’t get to experience it. I have a whole new appreciation for it."
Celebrity in free-speech circles
Lewis Mills student taking her resolve to federal appeals court
BY MEGAN BRODERICK
Mon., Oct. 8, 2007
BURLINGTON — Avery Doninger, 17, has lost once in court against her principal and superintendent. She doesn’t plan to lose again.
“That would be a sad day,” said the Lewis S. Mills Regional High School senior. She is appealing a federal judge’s recent decision* [see editor's note] that school leaders
were within their legal rights to remove her from running for class secretary because she called administrators “douche bags” on a blog entry she wrote at home.
“I did pick this battle because it’s really important,” she said. “With democracy, if you can’t maintain it on its lowest levels, it slowly erodes.”
Those are lofty words from a teenager whose offending blog, written in April, stemmed from annoyance over the prospect of a canceled battle of the bands. Yet this lawsuit has thrust this average student, and her school district, into public scrutiny on the Internet and in the media. It has also put her and her school at the forefront of a largely unexplored legal issue: What power, if any, do schools have over the content students put online?
The debate comes at a time when the Internet has become an outlet for most teens, and social networking sites such as Facebook and MySpace are thriving. Chatting online, about everything from sex to school administrators to gossip from last weekend’s secret party, has become a routine part of teenage life.
An Internet search for Doninger’s name turns up pages upon pages of results, many of them blog entries that support her cause. Her mother, Lauren, said they have received notes of support from as far away as Texas and Maine. A collection of local writers and poets have gotten involved, holding a fundraiser Oct. 14 at Litchfield Inn to help the Doningers cover their legal fees. Lauren Doninger said she was not comfortable revealing how much the lawsuit has cost so far.
This case and the subsequent attention have brought inevitable changes for Doninger, who holds a 3.2 GPA and whose most treasured activity was her spot as class secretary that she had held since freshman year. It was weird at first, seeing her name in the news, she said. But she’s gotten use to it, as well as to a newfound reputation as a student activist. Recently, students upset that the district stopped selling vitamin water came to Doninger — would she take up their cause?
They were partly joking, but Doninger says she wants to keep a low profile. “Teachers give me winks in the hallway, and kids will ask me questions about it,” Doninger said. “But I steer clear of administrators. I’m so careful in class and in papers. I don’t want to get in trouble.”
She plays trumpet in the marching band, rows on the varsity crew team, baby sits and works at Subway. Like many high school seniors, she is applying to college. Her college essay will focus on the lawsuit. It has already come up in an interview at her top choice school, Lesley University in Cambridge, Mass., a small liberal arts school whose motto is “Let’s wake up the world.”
Doninger has gone from having the textbook understanding of her rights that she says is typical among her peers to being an advocate for free speech who speaks comfortably about the issue. She answers e-mails and Facebook messages from college students hoping to score an interview for research papers or journalism assignments.
Her friends have been subpoenaed to court. They wouldn’t volunteer to come to court in August, Doninger said, because they were afraid of getting on the bad side of school administrators.
“Schools drill into your head your basic amendments, but you don’t get to experience it,” said Doninger. “I have a whole new appreciation for it.”
It has not been easy on her, Lauren Doninger said.
“This has been incredibly difficult. I don’t want it to define her,” she said. “I hope the thing that will help to define her is not that she’s the kid who wrote ‘douche bag,’ but that she wasn’t willing to have the Constitution trampled.”
The initial idea for a lawsuit came from Litchfield author Andy Thibault, who has organized the poets and authors fundraiser, Doninger said. But the decision to file suit came from weeks of discussion and debate between Doninger and her mom. Doninger also has two brothers supporting her in the matter, Everett, 19, a freshman at Eastern Connecticut State University, and Griffin, a 14-year-old freshman at Oliver Wolcott Vocational Technical High School in Torrington.
“At first glance, I sensed very strongly that something was dreadfully wrong,” said Thibault, who said he learned about the situation from news reports.
In the spring, disagreement swirled between Region 10 administrators and students around the planning of a battle of the bands, and when and where it would be held. Doninger, under what administrators say was a false belief that the event was canceled, wrote on her blog that problems were “due to the douche bags at central office” and asked readers to call the central office to “piss off” the superintendent.
She was banned from running for re-election to her secretary post and student write-in votes that would have won her the post were ignored. This summer, she and her mother sued the principal and superintendent for alleged First Amendment violations and requested an injunction with the U.S. District Court in New Haven. If she had won, it would have required the school to redo the election to include her on the ballot. But Judge Mark. R. Kravitz ruled in favor of school administrators on Aug. 31.
The appeal has been filed with the U.S. Second Circuit Court of Appeals in New York City. Superintendent Paula Schwartz is confident the initial ruling will stand. She said the case is not about free speech, but about a school reprimanding a student for acting inappropriately in a position as a class secretary. “I encourage students to debate the First Amendment, I think that’s important. But I also think it’s important for students who are in positions of authority to understand they have a responsibility,” Schwartz said. “I find it sad that the energy is being expended this way, primarily because this is her senior year. It is unlikely it will be overturned.”
Doninger firmly believes students’ First Amendment rights are at stake, and that the lawsuit will have a powerful impact that will follow her for the rest of her life. “I think having this issue addressed is a good thing. It needs to be. It’s a new era, the Internet is new,” she said. “We need to set some precedent. When my mom was a kid she had a diary, she used that to vent.”
Doninger is standing at the edge of “no man’s land” in terms of student free speech cases, said Martin Margulies, a First Amendment lawyer and professor emeritus of constitutional law at Quinnipiac University. Margulies is writing a brief on the case in support of Doninger on behalf of the Center for First Amendment Rights, a Hartford-based resource on First Amendment issues.
Margulies would not comment on the specifics of the case, but elaborated on the importance of this gray area of student rights before an audience of about 200 Connecticut high school students gathered Friday at St. Joseph College in West Hartford for the center’s 10th annual conference on the First Amendment. The students discussed a fictionalized case modeled after Doninger’s in which a student named “Michelle” called administrators douche bags on the social networking site Facebook.
“We’ve got an awful lot of blurry boundaries,” Margulies said. It is clear that schools can intervene if students post something online that can be considered a threat. But there are bound to be many more cases related to student speech, schools and the Internet, he said.
“It’s cool to watch it all happen and to be a part of it,” Doninger said. “Very few students get to do that.”
STUDENTS AND THE SUPREME COURT
There are four U.S. Supreme Court cases that deal with the First Amendment rights of public school students.
Tinker v. Des Moines Independent School District, 1969: In protest against the Vietnam War, high school students wore black armbands to school. The principal suspended the students who refused to remove the armbands, after fearing they were going to cause disturbances. The Supreme Court in a 7-2 decision overturned the suspension, saying that public schools can’t restrict student speech unless they can prove a disturbance resulting from the speech is likely to “materially and substantially interfere” with school operations.
Bethel School District No. 403 v. Fraser, 1986: A high school student was suspended for giving a sexually suggestive speech at a school election assembly. The Supreme Court upheld the suspension by a 72 vote, saying a school is entitled to teach its students “the boundaries of socially acceptable behavior” and can ban lewd, vulgar or profane student expression on school grounds or at schoolsponsored events without having to show likelihood of disruption.
Hazelwood School District v. Kuhlmeier, 1988: A high school principal refused to allow the school’s official student newspaper to publish controversial articles about pregnancy and divorce. The Supreme Court sided with the principal, 5-3, saying the Tinker case does not apply to school-sponsored student speech. The court’s decision found educators may “in any reasonable manner” control content of school-sponsored publications, productions and other expressive activities.
Morse vs. Frederick, 2007: A high school student was suspended for displaying a sign that said “Bong Hits 4 Jesus,” while the students had been allowed during school time and under school supervision to watch the Olympic Torch go by in the streets. The court ruled 54 that his suspension was constitutional, saying that just as in the Fraser case, schools have the right to teach socially acceptable behavior, including deterring drug use. Schools can punish or prohibit student speech advocating illegal drug use even if it is not likely to cause disruption.
— Source: The Center for First Amendment Rights