The 2nd Circuit's standard here may be the logical extension of the national security state, in which unoffending citizens suffer endless petty harassments while the government leaves the nation's borders undefended against serious enemies. But this standard must not prevail ...
... Schools have no legitimate need to punish students for conduct off school grounds that is not criminal ... school administrators should have plenty of threats of disruption to worry about before retaliating against mere criticism.
THE CHRIS POWELL COLUMN
Tuesday, June 3, 2008
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SAVE STUDENT FREEDOM;
FIX INSURANCE POOL BILL
By CHRIS POWELL
Federal court decisions keep going against Avery Doninger, the student at Mills High School in Burlington who was punished by school administrators for criticizing them on the Internet a year ago over the cancellation of a school concert. In her criticism Doninger used a rude name, and the 2nd U.S. Circuit Court of Appeals ruled the other day that "vulgar or offensive speech -- speech that an adult making a political point might have a constitutional right to employ -- may legitimately give rise to disciplinary action by a school."
Elaborating, the court said: "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,' or at least when it was similarly foreseeable that the off-campus expression might also reach campus."
But the U.S. Constitution, which the court claimed to be interpreting, makes no distinction between the free-speech rights of adults and those of minors. The 2nd Circuit Court of Appeals would authorize a vast restriction of freedom of speech for students off school grounds -- and would give the suppressive power to the most self-interested and least accountable bureaucrats, school administrators.
The 2nd Circuit's standard here may be the logical extension of the national security state, in which unoffending citizens suffer endless petty harassments while the government leaves the nation's borders undefended against serious enemies. But this standard must not prevail. And fortunately there are still remedies.
First, the 2nd Circuit's decision is preliminary, not a final judgment on the case but the answer to Doninger's request for an injunction against her school. The case itself still has to go to trial.
Second, the decision does not address the requirements of Connecticut's own Constitution, which still could be construed in favor of free speech and limited government, if Doninger ever brought her case into state court.
And third, most practical and most quickly done, the General Assembly and governor could enact legislation to prevent overreaching such as that committed by Mills High School.
Schools have no legitimate need to punish students for conduct off school grounds that is not criminal, and their claims of the threat of disruption are, as the Doninger case demonstrates, easily used to stifle criticism. Indeed, in Connecticut' schools such claims probably will be used only to stifle criticism.
If there is ever a real threat of disruption, rather than a threat of embarrassment, school administrators can just call the police like everybody else. And since, as the horrific assault at Manchester High School disclosed recently, Connecticut law negligently allows students with felony convictions for assault to continue attending school, school administrators should have plenty of threats of disruption to worry about before retaliating against mere criticism.
* * *
Legislation recently passed on politically partisan votes in the General Assembly to let municipalities, small businesses, and non-profit agencies join the state employee medical insurance pool may have serious technical problems. But it would be easy to fix them and meet objections to the bill.
Yes, the state cannot unilaterally alter its contracts with its insurers to enlarge the pool. But those contracts expire and are renegotiated from time to time, and they can be changed by agreement at any time. This is only a matter of timing, not concept.
Yes, the state employee insurance policy is luxurious, and critics see the pool-expanding legislation as a scheme to elevate municipal employee union members to the lofty status of state employees. (Nothing may delight the Democratic majority in the legislature more than betraying the public interest to public employee unions -- just as nothing may delight the Republican minority more than protecting insurance companies against competition.) But no municipalities, businesses, and social-service agencies would join the state pool if it didn't promise to save them money. So what's the harm in finding out?
And if the state employee policy is indeed too rich to save money for new joiners, state government could try to assemble another insurance pool, as Attorney General Richard Blumenthal has suggested, and as Governor Rell herself is trying to do with for a plan of rudimentary insurance for the working poor.
The underlying principle here remains in operation: Group purchases save money by reducing overhead. So any veto of the insurance bill by the governor should be only the prelude to fixing it.
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Chris Powell is managing editor of the Journal Inquirer in Manchester, Conn.
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