NH Register Story On Free Speech Case, Bill

Blog ruling sets stage
for high court battle

“Schools seem to be going back to the 1950s, if not the 1850s, in terms of their treatment of students. ... I, for one, don’t want to live in a police state society ... I don’t know whether the judiciary in general or this country is willing to go to the extreme he [Kravitz] has proposed in terms of censorship of students.”

-- Atty. Jon Schoenhorn


Monday, February 9, 2009 6:05 AM EST
By Randall Beach, Register Staff


A New Haven-based federal judge’s ruling against a high school student for language used in her blog has led to a vow for court appeals. Meanwhile, a state legislator has introduced a bill to protect students’ free speech rights.

Although U.S. District Judge Mark R. Kravitz ruled Burlington school officials were within their rights when they disciplined Avery Doninger for calling school administrators “douche bags” on her blog, defense attorney Jon Schoenhorn said this is a “censorship” issue that could ultimately be decided by the U.S. Supreme Court.

After Doninger’s blog posting began to circulate and was read by school officials, they barred her from running for election as senior class secretary.

Schoenhorn noted Doninger wrote the characterization on her personal blog at home. But in his ruling, issued Jan. 15, Kravitz said in the new age of the Internet, “Off-campus speech can become on-campus speech with the click of a mouse.”

Kravitz also wrote, “Today, students are connected to each other through e-mail, instant messaging, blogs, social networking sites and text messages. An e-mail can be sent to dozens or hundreds of other students by hitting ‘send.’”

But Schoenhorn said, “Just because it’s more convenient doesn’t mean everybody else reads it. It’s no different than an underground newspaper, or standing in a park on a soap box with a megaphone.”

When state Sen. Gary LeBeau, D-East Hartford, read news accounts of the case, he thought to himself, “What they did to that young girl was wrong.”

LeBeau, a retired teacher, decided to introduce a bill that seeks to prohibit school officials from punishing students for content of electronic correspondence transmitted outside of school facilities or with school equipment, as long as it’s not threatening to students, school personnel or the school.

Doninger, who has since graduated, was a junior at Lewis S. Mills High School in spring 2007 when the events unfolded.

Doninger, then a Student Council member and junior class secretary, was organizing an annual student rock concert, Jamfest. But when Principal Karissa Niehoff said logistical problems prevented the concert from happening on the date favored by students, Doninger and three other students went to the school computer lab and sent an e-mail message to many local residents, urging them to protest Niehoff’s decision.

That night, Doninger posted a blog entry that said: “Jamfest is cancelled, due to douche bags in central office.”

Doninger also encouraged her readers to write to Region 10 School District Superintendent Paula Schwartz “to piss her off more.”

In his ruling, Kravitz rejected Doninger’s claims that administrators violated her rights to free speech and equal protection and intentionally inflicted emotional distress when they punished her by refusing to let her run for class secretary. Two other courts previously issued similar rulings.

But Kravitz let stand Doninger’s claim her “speech was chilled” when Niehoff barred students from wearing T-shirts that said “Team Avery” to a Student Council election assembly. The students wanted to wear the shirts in protest over how Doninger was being treated.

Kravitz’ ruling on the T-shirts means that issue can proceed to a trial. But Thomas Gerarde, attorney for the Region 10 school district, has asked Kravitz to reconsider the matter.

“Overall, the school district is pleased to have been fully exonerated as to the discipline issued to Avery Doninger for her improper conduct,” Gerarde said. “We will continue to fight each battle as it arises.”

But Schoenhorn said of Kravitz’ rulings, “I don’t know whether the judiciary in general or this country is willing to go to the extreme he has proposed in terms of censorship of students.”

Schoenhorn added, “If this is the new frontier of student censhorship, I’ll take it as far as I can go. If we lose, let’s lose it at a higher level. This issue might ultimately have to be decided by the U.S. Supreme Court.”

Citing recent actions in other states, Schoenhorn said, “Schools seem to be going back to the 1950s, if not the 1850s, in terms of their treatment of students. ... I, for one, don’t want to live in a police state society.”

Randall Beach can be reached at rbeach@nhregister.com or 789-5766.

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