Home Invasion By Douche Bag School Bosses
On The Docket Along With Seizure Of Free Speech T-Shirts
Judges Will Have To Review Punishment
For Seeking Redress Of Grievances
Travesty Kravitz's Efforts
To Contain Case, Avoid Accountability
Face Major Reversal
By ANDY THIBAULT
The Cool Justice Report
July 30, 2009
EDITOR'S NOTE: This story is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com
aka the intersection of
And New Haven U.S. District Courtroom Four
When Mark Kravitz Is On The Bench
Free Speech Freedom Fighter Avery Doninger will get a hearing to appeal her punishment for rallying citizens to support students in their quest to hold a concert that was cancelled by school officials in Regional District 10.
The U.S. Second Circuit Court of Appeals in New York granted Doninger's request for a wide-ranging appeal on July 23. No schedule has been set for the appeal.
In a brief filed Monday, attorney Jon Schoenhorn of Hartford said former School Superintendent Paula Schwartz and Lewis Mills High School Principal Karissa Niehoff violated Doninger's constitutional right to free expression by disciplining her for an entry in an on-line journal written in her own home, as well as by banning free speech t-shirts with political messages supporting her.
Previously, a Second Circuit panel of judges -- including U.S. Supreme Court nominee Sonia Sotomayor -- upheld New Haven U.S. District Judge Mark Kravitz's refusal to grant an injunction recognizing Doninger's write-in victory for class secretary in 2007 and allowing her to speak at graduation. After she was banned from running for office, Doninger won election by a write-in vote that Schwartz and Niehoff kept secret and refused to uphold.
"If the outcome of the election proves anything," Schoenhorn said in court papers, "it is that nascent citizens will choose democracy over autocratic behavior, even in the face of repression."
As the Student Press Law Center put it, the Second Circuit will now get a second chance to right a wrong: "The court [in its prior decision] reached to make new and damaging First Amendment law, driven by a singular objective: find a way for the student to lose and the school to win."
Doninger recently returned to Burlington after a year of service in Americorps, helping hurricane victims in Texas and Mississippi, among other places.
Kravitz had scheduled a trial on the seizure of free speech t-shirts this summer, but lawyers for Schwartz and Niehoff appealed. That led to Schoenhorn's appeal on the blog issue and the punishment for seeking redress of grievances. He called actions by Schwartz and Niehoff willful, wanton extreme and outrageous.
In the brief filed Monday, Schoenhorn also noted that student council advisor Jen Hill advised students to reach out to school district taxpayers for support. The resounding response from the community urging administrators to allow Jamfest to be held in the auditorium resulted in Schwartz cancelling the event. Indeed, Niehoff told Doninger that if there was the slightest chance Jamfest could be held in the auditorium, it would have to be at a much later date and only if students "played their cards right."
Weeks after the controversy was resolved, Schwartz's son, attorney Daniel Schwartz, found Doninger's Livejournal post online.
The post, Schoenhorn said in his brief, "shows that its purpose was to alert parents and voters in order for them to petition school officials [to] change the decision about Jamfest. The fact that Schwartz became unreasonably annoyed by telephone calls and emails from district voters does not justify the narrow meaning of the plaintiff's blog posting that the defendants ascribe to the plaintiff."
Doninger noted that Schwartz was "pissed off" about getting community input, and reasoned it was appropriate in that context to piss Schwartz off more. She also made the famous observation that Jamfest was cancelled because of "douchebags in central office."
SEPARATED AT BIRTH?
-- Col. Klink & Paula Schwartz?
-- Sgt. Schultz & Karissa Niehoff?
Following is a Readers Digest version
of the Doninger case:
Avery Doninger, a volunteer in the Americorps national public service program, has a civil rights trial pending in New Haven U.S. District Court. [Among her duties on the job: helping hurricane victims in Texas.]
Avery, a 2008 graduate of Lewis Mills High School in Burlington, CT, and her mother, Lauren Doninger, sued Principal Karissa Niehoff and Superintendent Paula Schwartz [now retired] after they removed Avery from the ballot for class secretary.
Avery Doninger was among a group of four students who lobbied the community for support of an annual battle of the bands sponsored by the Student Council. The student council adviser suggested the students reach out to taxpayers and the students copied the adviser an on email to the community.
Schwartz became very upset after taxpayers called her and she cancelled the event known as Jamfest. Doninger subsequently referred to administrators in a live journal blog as central office douche bags, and Schwartz's son found the posting while trolling the internet for his mother a couple weeks later. While Avery Doninger was banned from school office, another student who called Schwartz a dirty whore was given an award and lauded for citizenship.
School officials suppressed the write-in vote in which Doninger was elected by a plurality. Schwartz refused to accept Doninger's apology for her choice of words. During an assembly, Niehoff banned free-speech and Team Avery t-shirts and seized at least one shirt.
The Doningers have been seeking -- among other remedies -- an apology for civil rights violations and recognition of the write-in victory.
New Haven U.S. District Judge Mark Kravitz denied a motion for a preliminary injunction [immediate relief] in August 2007. Based on errors in the record, Travesty Kravitz's injunction ruling was upheld by the U.S. Second Circuit in New York.
Travesty Kravitz held a hearing in November 2008 on Doninger's request for a trial. He cut off discussion about various frauds - including false testimony - upon the court and ultimately ordered a trial on Jan. 15, 2009. But, he limited the scope of the trial to the narrow issue of the suppression and seizure of free speech t-shirts.
Appeals are likely on a number of rulings narrowing the scope of the case.
On Jan. 22, 2009, Connecticut State Senator Gary LeBeau filed a landmark bill to protect student speech.
On Jan. 23, 2009, Travesty Kravitz scheduled jury selection and a trial for civil rights violations related to the suppression and seizure of free speech t-shirts.
July 23, 2009: Second Circuit agrees to hear appeal on blog issue.
Atty. Jon Schoenhorn with Avery Doninger, Lauren Doninger
Filed @ Second Circuit 7-27-09
The plaintiff submits that the district court erred in denying her motion for summary judgment because the undisputed facts on the record support a finding that she was silenced and chilled in violation of the First Amendment by being prohibited from wearing the "Team Avery" shirts in the student election assembly. She further claims the defendants had no constitutionally defensible reason for curtailing such speech.
The decision to ban the t-shirts was not justified by the need to make a hasty, "on the spot" decision, nor would expedience justify the violation of plaintiff's First Amendment rights under the facts of this case.
Finally, Defendant Schwartz remains legally responsible for the violation of the plaintiff's constitutional right to expression, because she was informed of Defendant Niehoff's plans to censor t-shirts supporting the plaintiff, and did nothing to stop it. As superintendent of schools, and Niehoff's superior, she had a specific duty to prevent Niehoff from violating students' rights.
At its core, this appeal is about high school students' rights to peaceably and silently protest a draconian and arbitrary decision by administrators who run their school. The messages on the "Team Avery" t-shirts are exactly the kind of "expression on public issues [that] has always rested on the highest rung of First Amendment values." Bieluch v. Sullivan, 999 F.3d 666, 671 (2d Cir. 1993), quoting NAACP v. Clayborne, 458 U.S. 886, 913 (1982). The expression in the instant case occupies a position no less exalted due to its public school setting. Indeed the "vigilant protection of constitutional freedoms is nowhere more vital than in the community of [our] schools." Healy v. James, 408 U.S. 169, 180 (1972). Students classically "do not shed their constitutional rights at the school house gate." Tinker v. Des Moines Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Two years ago, the Supreme Court reiterated this axiom while acknowledging that "the constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings." Morse v. Frederick, 551 U.S. 393, 127 S.Ct. 2618 (2007). In particular, this Court has declared that student free expression extends to the wearing of non-lewd messages on t-shirts. Guiles v. Marineau, 461 F.3d 320, 330 (2d Cir. 2006), cert. denied, __ U.S. __ , 127 S.Ct. 3054 (2007).
The Second Circuit is hardly alone in this declaration. Courts across the nation are in accordance with this rule. See e.g., Nuxoll v. Indian Prairie Sch. Dist. #204, 523 F.3d 668 (7th Cir. 2008)(student entitled to wear shirt to school with message "Be Happy, not Gay"); Chandler v. McMinnville, 978 F.2d 524 (9th Cir. 1992)(student buttons depicting the word "scab" to protest hiring of non-union substitute teachers during teachers' strike protected by the First Amendment); Gillman v. Sch. Bd. For Holmes County, Florida, 567 F.Supp.2d 1359 (N.D. Fl 2008)(student improperly punished for wearing t-shirts advocating fair treatment for gay students after school officials treated her cousin unfairly due to her homosexuality); DePinto v. Bayonne Bd. Of Education, 514 F. Supp 2d 633 (D.N.J. 2007)(student entitled to injunction preventing school from imposing sanctions for wearing a button protesting a school uniform policy).
Schools can only restrict these rights in a well-defined and limited set of circumstances. Expression of views on the clothing students wear to school may be censored only if officials can reasonably forecast that the expression will cause material and substantial interference with the requirements of appropriate discipline in the operation of the school. Tinker, 393 U.S. at 513; Doninger v. Niehoff, 527 F.3d 41, 48 (2d Cir. 2008). Vague concerns about disruption are insufficient to prompt an abridgement of student rights. The students in Tinker wore black armbands to school to express opposition to the Vietnam War. The record in the case revealed that students threatened to fight other students, the protesters were mocked by their classmates, and at least one teacher had a lesson period "wrecked" by Mary Beth Tinker's comments. Tinker, 393 U.S. at 517-18 (Black, J., dissenting). Nevertheless, the majority was unpersuaded that these inconveniences were sufficient to justify censoring student speech:
[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 1337 U.S. 1 (1949); and our history says that it is this sort of hazardous freedom - this kind of openness - that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.
The plaintiff submits that the messages on the plaintiff's t-shirt were categorically protected by the First Amendment and that censoring those messages was a direct violation of the Constitution. The facts show that the t-shirt messages were political in nature - expressions of support of free speech at the high school on one side and solidarity with the plaintiff on the other.
It is undisputed that Niehoff's actions both silenced actual expression and chilled the plaintiff from wearing the shirt. Avery Doninger was carrying a "Team Avery" t-shirt, which she intended to don after her admission to the auditorium. The record is clear, despite the district court's suggestion of vagueness, that Avery wished to display a t-shirt bearing the messages "Support LSM Freedom of Speech" and "Team Avery" after her admission to the auditorium. As she joined the group of students entering the auditorium, she witnessed defendant Niehoff chastising a classmate for his own "Team Avery" t-shirt. Niehoff informed students entering the auditorium that the shirts were disruptive and set a bad example, and that the shirts were prohibited in the auditorium. (J. App. A-94, A-135, A-144-45, A-158.). She even confiscated one of the shirts. After witnessing Niehoff's conduct, Avery abruptly hid her "Team Avery" shirt in a backpack, and left it outside the auditorium.
Defendants also raise the bizarre suggestion that the plaintiff's attempt to vindicate her First Amendment rights through the court system after the school year ended justified a prediction of disruption from the shirts. Defs. Br. at 37-38. This idea is not only absurd, but dangerous, and must be rejected out of hand. The "right of a private individual to sue and defend in the courts is itself protected by the First Amendment because it is the right conservative of all other rights [which] lies at the foundation of orderly government," Colombo v. O'Connell, 310 F.3d 115, 118 (2d Cir. 2002)(internal quotation marks omitted), quoting Chambers v. Baltimore & Ohio R. Co., 207 U.S. 142, 148 (1907). Declaring the act of bringing suit a disruptive act is the first step toward totalitarianism.
Much of the defendants' arguments relies on facts that are either directly contradicted by the written record or otherwise remain disputed, such as Niehoff's mental state. Some of the so-called "facts" upon which the defendants' arguments are built, and which must be ignored, include the following:
Niehoff was faced with the need to make an immediate decision "on the spot" regarding the t-shirt ban and therefore had no time for reflection. Def. Brief, pp. 12, 16, 19, 32, 35, 40, 41. In fact, Niehoff sent an email shortly before 5 a.m. that day to the superintendent, informing her that students may wear t-shirts bearing messages of support for the plaintiff, well in advance of the noon election, and expressing her desire to prevent it. (J. App. A-259) Niehoff thus had the entire morning to prepare an appropriate response to any messages of support for Avery, and defendant Schwartz knew of Niehoff's plans.
The purpose of Avery's online journal posting was solely to "piss [Schwartz] off more." Def. Br. p. 10. The online journal entry shows that its purpose was to alert parents and voters in order for them to petition school officials change the decision about Jamfest. (J. App. A-167) The fact that Schwartz became unreasonably annoyed by telephone calls and emails from district voters does not justify the narrow meaning of the plaintiff's blog posting that the defendants ascribe to the plaintiff.
No electioneering materials pertaining to any candidates were observed at the assembly. The defendants assert this as evidence of a blanket policy against electioneering materials. Defs. Br. p. 12. In fact, no policy prohibiting electioneering material existed, student dress code policy permitted expressive messages on clothing, and the Board of Education expressly reiterated its policy permitting electioneering material. (J. App. A-293.) Moreover, as the district court noted, Avery Doninger was not a candidate for any office and her shirt was not electioneering material. (J. App. A-346.) Finally, defendants' ad hoc policy only applied to Avery.
Defendants claim that students were allowed to wear "Team Avery" shirts before and after the assembly. Defs. Br. at 12. However, the record shows that only one student wore a "Team Avery" shirt before the assembly, and that as soon as Niehoff saw that he was wearing the shirt, she ordered him to take it off. (J. App. A-134-35, A-291.) The record is silent as to whether students were permitted to wear the "Team Avery" shirts on the same day after the assembly; however, students did wear "Team Avery" shirts on later dates. (J. App. A-291, A-293.)
Defendants claim that plaintiff did not intend to wear her "Team Avery" t-shirt in the auditorium based on her hearing testimony that she "was going to put it on after." (J. App. A-93.) The district court found this statement "could mean any number of things." (J. App. A-346.) However, this is a manufactured ambiguity. The plaintiff's statement at the preliminary injunction hearing is consistent with the sworn affidavit she filed with her complaint at the inception of this action on July 5, 2007, in which she stated: "I was afraid to put on the 'Team Avery' shirt that I intended to wear in the auditorium." (J. App. A-128.)
The defendants claim that "wearing [of] t-shirts advocating the casting of votes for the disqualified plaintiff and of a campaign to write her name in on the ballots" (Def. Br. p. 34) was disruptive or potentially disruptive. There was no evidence that the message was in fact or theory "disruptive." Moreover, there was no evidence of a "campaign." On the contrary, the message was a silent statement of student expression and democracy, and the outcome of the election constituted the will of the voters.
Much of the defendants' arguments are premised on the notion that Avery Doninger and her classmates were restricted from wearing "Team Avery" t-shirts pursuant to an unwritten and heretofore unknown policy barring electioneering materials during class speeches that was invented on the day of the assembly. The suggestion of the existence of such policy was first raised by Niehoff at the preliminary injunction hearing, and is otherwise unsupported by any other evidence in the record. Indeed, after Niehoff first asserted this claim, the Region # 10 school board declared that no such restrictions on the use of electioneering materials at Lewis Mills High School existed. The subjective claim of Niehoff that she believed she had the right to create an ad hoc (or as the district court asserted, "post hoc," (J. App. A-346.)) policy finds no support in first amendment jurisprudence. It certainly provides no basis for qualified immunity on the facts presented, and the argument borders on frivolous. As the district court below noted:
LMHS had no general ban on electioneering materials. It is undisputed that there was no written policy that would have prohibited the t-shirts and there is no evidence that Ms. Niehoff was confiscating any other electioneering materials at the doors to the school auditorium. Furthermore, the email sent by Ms. Niehoff to Ms. Schwartz and others on the morning of the election assembly makes clear that she was particularly focused on preventing "Team Avery" t-shirts from being worn into the auditorium. Defendants cannot claim that the t-shirts violated an unwritten policy that Ms. Niehoff apparently made up on the spot and then applied only to the "Team Avery" t-shirts. Such a post hoc rationalization is not a reasonable viewpoint neutral restriction.
Defendants also note that a plurality of students actually voted for the plaintiff by write-in ballot as if that constitutes evidence of actual disruption reasonably predicted by Niehoff. However, the defendants fail to understand that the democratic choice of the student body occurred in the absence of the t-shirts after they were banned, and therefore cannot serve as a basis to justify unconstitutional behavior that occurred beforehand. If the outcome of the election proves anything, it is that nascent citizens will choose democracy over autocratic behavior, even in the face of repression.2 Significantly, defendants point to nothing to suggest that the banned t-shirt might place undue pressure on student voters. Thus, the defendants' suggestion that the democratic election of an "unofficial" candidate suggests evidence of disruption is simply absurd.
Any reasonable school administrator would know that curtailing speech pursuant to an anti-electioneering policy made up "on the spot" would fail to survive constitutional scrutiny because it lacks the rudimentary prerequisites of notice and fairness. When such policy is applicable only to t-shirts that endorse "free speech" at a high school, and to a particular person - Avery Doninger - then such an ad hoc electioneering policy is clearly unconstitutional.
As Judge Kravitz found, the "Team Avery" shirts did not violate any established school policy. In fact, they were expressly permitted by existing policies of the board of education. No interpretation of the shirt messages could lead a reasonable school official to the conclusion that they advocated disruptive, illegal, or inappropriate behavior. If hasty "on the spot" decision-making excused unconstitutional behavior, it would reward less educated or illiterate officials who cannot or will not read material they seek to censor.
Moreover, the informal, ad hoc anti-electioneering "policy" now asserted by the defendants fails to conform to any of the legal precedents that might justify prior restraint in other circumstances. See Section III.D, supra. It is clear that no reasonable school administrator could conclude that Niehoff's ban was justifiable, even if her claimed need for expedience remained uncontested.
However, as previously stated, the claim that Niehoff's reaction was spontaneous is disputed. The email sent at 4:56 a.m. that morning to defendant Schwartz demonstrates, at the very least, that Niehoff had reason to believe that students would wear t-shirts supportive of the plaintiff to school and write her name on election ballots. She expressed a desire at that early hour to have the plaintiff stop such activity. Niehoff also stated that the student council advisor was instructed "to stop any discussions" about the subject. Niehoff thus had several hours to prepare an appropriate response to so-called "electioneering" messages on clothing. Therefore, any argument that her decision to ban the "Team Avery" shirts was objectively reasonable because it was spontaneous or "on the spot" lacks basis in law or fact.
The evidence shows that defendant Schwartz knew or should have known, based on clearly established appellate decisions, that banning student speech based on an ad hoc, viewpoint discriminatory policy was contrary to the first amendment, and that Niehoff intended to engage in such conduct. In addition, Schwartz was the superintendent of schools and final decision-maker with regard to the actions of administrators and principals within the school system. (J. App. A-313-14.) Schwartz knew from the early morning email that Niehoff intended to act against student-inspired t-shirts that she suspected would support the plaintiff, and it is undisputed that Schwartz did nothing to stop Niehoff's unconstitutional agenda.