Editor's Note: This column first appeared Sept. 4, 2007
What the administration did
in response was
an act of cowardice
The decision by Judge Kravitz
is rather long in words
and short in substance
Didn't anyone ever give him the judge handbook?
NY Atty. Scott Greenfield's
Student Speech Slides Further Downhill
Posted by SHG at 9/4/2007 6:23 AM and is filed under uncategorized
Following the Supreme Court's ill-conceived decision in Morse v. Frederick, discussed here, a fine example of the law in action comes to light via Crime & Federalism (from that old constitutional ne'er-do-well, Norm Pattis) and Cool Justice [blogs] by Andy Thibault (who clearly has a better idea of what's "cool" than I do). It's the story of Avery Doninger, a Connecticut High School Student who could well be a model for all of us with daughters. She is the proverbial "good kid," having done pretty much everything right. Well, except one thing.
Before relating the sorry tale of US District Judge Mark Kravitz's decision in Doninger v. Neihoff, one thing should be firmly understood. A year of high school lasts for a mere moment in law time, so the impact of delay, whether at the trial court level or due to appeal, results in an opportunity forever lost. Whether you think the opportunity cost is significant, a few weeks lost is justice denied.
Now back to Avery. Disturbed by an administration decision to not allow "Jamfest", a concert that Avery organized, Avery went online and posted about how the school Superintendent and Principal were "douche bags," and urged parents and students to write and email the alleged "douche bags" to "piss them off even more." After the administration learned of Avery's post, they punished her by refusing to allow her to run for school government secretary, give a speech with other student candidates and forbid students from wearing "Team Avery" shirts.
Now I don't care for the phrase "douche bags." Then again, I don't care for the phrase "paternalistic pedagogy " either, although this phrase comes back to haunt me in this case. What does it matter that a "vulgar" phrase was used to describe school officials? Everything, apparently, to a district court judge, who views the particular words to be inconsistent with Avery's role as a student leader, therefore justifying administrative punishment.
The decision by Judge Kravitz is rather long in words and short in substance. It is one of those decision that goes on forever for no better reason than to self-justify it's outcome. If you call the words "douche bag" vulgar and offensive enough times, then it becomes easier to ignore the impact on free student speech as well as the utter abdication of responsibility to rule upon the constitutionality of the punishment.
Every decision about student speech must, by definition, include reference to the Supreme Court's decision in Tinker v. Des Moines Indep. Sch. Dist. , 393 U.S. 503 (1969), holding that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gates." Having made the obligatory quote, the next step is to find a way to circumvent Tinker by reference to its counterpart, Bethel Sch. Dist No. 403 v. Frazer , 478 U.S. 675 (1986), where the Court held that students' free speech is not co-extensive with adults. Thus, the battleground falls between these two decisions. In a perfect world.
What this means is remarkably unclear. There's no point to constitutional jurisprudence if not to clarify what is and what is not constitutionally protected. So then came the Morse decision to really screw up the works. To the extend that Morse stands for anything, it is that any student speech that can be rhetorically rationalized to negatively impact anything that theoretically fits within a school's arguable sphere of interest is subject to school administrator's disapproval. The schoolhouse gates have been left behind as anachronism, and the speech is now only subject to the most fertile of imaginations.
Adding insult to injury, the administration decided on a curious punishment for Avery. Rather than direct their ire toward this "Jamfest", the subject of her protest, they decided to punish her by not allowing her to run for student government secretary. The theory was that her "vulgar" language was unbecoming of a student leader, according to the court. If only that was true for Richard Nixon. Clearly, the Puritans are hard at work in Connecticut to maintain those high standards of appropriate verbal abuse.
Consider the ramifications of this punishment: On the Jamfest issue, Avery and the administration are in opposition. The administration finds Avery's methods offensive. They therefore use their unilateral fiat to preclude Avery from employing the democratic process within their high school universe to vindicate her position by running for office. If only Karl Rove had thought of this first, imagine the havoc that would have followed. It is brilliant. It is fundamentally inconsistent with any notion of democracy in action.
And so Judge Kravitz pounced on this flagrant abuse of power to undermine the very basic notion of democracy with a scathing denunciation of this governmental usurpation of governance by the people, right? Nope. Instead, he punted. The court blithely deferred to the school administration, holding that who was he, a federal judge, to pass on the question of the propriety of punishment imposed upon an American by a government official. Didn't anyone ever give him the judge handbook? If not a federal judge, then who?
Stepping back from this case, one has to wonder how it is possible that Avery Doninger is not viewed as the poster child for democracy. She had a beef. She took it to the People. The People responded. That is the American way. Avery showed true leadership, not the type that appeases those in power.
Avery used the weapons that all true Americans should use, the power of thought and ideas as disseminated through word and deed. We don't have to like her choice of words, but we can't dismiss them because we would have preferred other words. And when challenging those in power, we don't ask their permission to use any particular language. This goes to the heart of the free speech rights in Tinker, the oft-quoted and long ignored core decision on student free speech.
As much as I dislike the particular words used, I admire Avery's moxie. What she did was as American as any act I've heard about in a long time. What the administration did in response was an act of cowardice, showing them as the petty bureaucrats that they are, beating up on a kid who out thought and out maneuvered them by using her rights as protected by the Constitution. What Judge Kravitz did was hand over Avery's, and every other student's, right to challenge and question those whose decisions have the greatest impact on their lives to the very people who seek to eliminate those rights under the guise of "paternalistic pedagogy."
We seek to teach students to be good people and good Americans. I give Avery Doninger an A+.