OF THE TITLE
Douche Bag Lawyer
'Minority-Report / Pre-Cog' Tractic:
Cites the administration's belief that widespread protest of the decision to block Doninger's run for senior class secretary was imminent.
Editor's Note: Real Pre-Cogs Actually Have Cog.
Appeals court hears Region 10 arguments over free speech
BY JIM MOORE
NEW YORK — Avery Doninger vowed Tuesday to fight "as far as necessary" for the right of students everywhere to speak of teachers and administrators as they see fit.
Doninger's precedent-setting battle with Region 10 school officials, whom she referred to as "douchebags" in a blog post written at age 16, was heard Tuesday for the second time by the 2nd U.S. Circuit Court of Appeals, where a panel of three judges has another chance to reinforce, or further erode, First Amendment protection afforded to students.
"This case is, like I've said before, bigger than me at this point," Doninger said.
Doninger has yet to convince a federal judge, at either the district or appellate level, that her rights were violated, and Doninger and her family are prepared to press the issue before the U.S. Supreme Court. Doninger's attorney, Jon L. Schoenhorn, was by no means ready to concede defeat following a hearing that at times seemed to tip in his favor.
All three judges questioned the rationale presented on behalf of Region 10: "Team Avery" T-shirts could legally have been blocked from a 2007 high school student election assembly under established legal doctrine allowing school administrators to suppress disruption, coupled with the doctrine of "qualified immunity" that insulates from civil litigation "reasonably competent" administrators who act in good faith.
"I'm having trouble understanding how wearing of T-shirts is going to cause disruption," said Judge José A. Cabranes, one of two panelists who did not hear the case during its first appearance before the same court in 2008. "I think we're all having difficulty following this line of reasoning."
Region 10 attorney Thomas R. Gerarde, a red light burning in front of him to indicate his time was already up, cited the administration's belief that widespread protest of the decision to block Doninger's run for senior class secretary was imminent, a "disruption" of education that the U.S. Supreme Court has long since ruled school administrators may act to prevent.
Aldon Hynes Reporting From 2nd Circuit
... Next was Attorney Schoenhorn’s turn. He started off by talking about listening to the Arguments in the Tinker Case. He compared the arguments of Attorney Gerarde as being very similar to arguments in Tinker. It is not substantially different from Tinker he suggested. He also noted that Judge Livingston had sat on the panel that had heard a preliminary injunction in this case that this hearing was very different from the hearing that Judge Livingston had heard ...
First Amendment advocates fear that, if not overturned, the lower court's ruling will blur the distinction between off-campus and on-campus speech. The Student Press Law Center filed a friend-of-the-court brief in support of Doninger through volunteer counsel with the Washington, D.C., office of Hunton & Williams LLP, arguing that the ruling endangers the freedom of online student journalists to comment on school issues.
Federal appeals court hears oral arguments in Doninger case
January 12, 2010
NEW YORK -- A public school's authority to discipline students for what they say or write "must necessarily be limited to the metes and bounds of school itself," an attorney for a Connecticut student told a federal appeals court today, during arguments in a First Amendment case challenging a school's authority to punish speech on an off-campus blog.
Attorney Jon Schoenhorn told a three-judge federal appeals panel that the principal of Connecticut's Lewis B. Mills High School overstepped the First Amendment in punishing Avery Doninger, then a high school junior, for a coarse remark about administrators on a LiveJournal.com blog.
Although the blog referred collectively to school administrators as "douchebags," Schoenhorn said that term appears regularly on prime-time television and even on the front page of the New York Times, and is simply a youthful slang for "jerk" rather than a vulgarity.
"When students use terms of this sort, they are not obscene or even vulgar," Schoenhorn told judges of the Second U.S. Circuit Court of Appeals.
A U.S. district judge in 2009 found no First Amendment violation in Principal Karissa Niehoff's decision to punish Doninger's commentary, which concerned a dispute over scheduling a battle-of-the-bands concert that Doninger was helping organize. Niehoff penalized Doninger by disqualifying her from running for secretary of the senior class.
The judge applied the Supreme Court's Bethel School District v. Fraser standard, which makes "lewd" speech punishable if it occurs on campus at a school-organized event. Doninger's blog was created at her own expense on a home computer, and there is no evidence that the blog's handful of readers ever viewed it at school.
First Amendment advocates fear that, if not overturned, the lower court's ruling will blur the distinction between off-campus and on-campus speech. The Student Press Law Center filed a friend-of-the-court brief in support of Doninger through volunteer counsel with the Washington, D.C., office of Hunton &Williams LLP, arguing that the ruling endangers the freedom of online student journalists to comment on school issues.
This is the case's second trip to the Second Circuit. At a preliminary stage of the case, applying different legal standards, the judges agreed that the blog punishment was constitutionally permissible. However, the case is now before a new three-judge panel, with only one holdover, Judge Debra Ann Livingston.
The judges pressed the school district's attorney, Thomas R. Gerarde, over whether the blog was factually false in indicating that Niehoff had canceled the band concert. The district judge relied heavily on his view that the blog was false -- the concert was canceled, but with discussions about resurrecting it -- in finding that the speech fell outside of First Amendment protection.
Gerarde conceded that the evidence was in dispute over whether the blog was actually false, but said there was no disputing that the statement was misleading.
The judges spent the bulk of the oral argument on a secondary issue, involving the school's ban on "Team Avery" T-shirts that supporters of Doninger wanted to wear to an election assembly to protest Doninger's disqualification.
The court focused on whether the Supreme Court's landmark student-speech case, Tinker v. Des Moines Community School District -- affirming students' First Amendment rights to wear anti-war armbands in school -- was similar enough to the Doninger case to make it clear that banning the "Team Avery" T-shirts violated the First Amendment. Tinker allows schools to restrict student expression only if it threatens to "substantially" disrupt school functions.
Doninger won on the T-shirt issue at the district court. If the Second Circuit affirms that ruling, then she will be entitled to a trial as to whether the T-shirt ban violated her First Amendment rights.
Gerarde described the prohibition as a spur-of-the-moment judgment that Niehoff was forced to make under pressure: "There are 600 kids filing into the auditorium, and all of a sudden around the corner come the T-shirts, ‘Team Avery,' and she's got to make a call. We don't know, are there 150 of these (shirts), are these the only two?"
Presiding Judge Jose A. Cabranes voiced skepticism that banning the T-shirts had any connection with keeping order at the assembly or protecting the integrity of the election, the two justifications offered by the school.
When Gerarde argued that "what the administration feared is that there would be a sea of ‘Vote for Avery' or ‘Team Avery' T-shirts," Cabranes shot back: "So what?"
"I am having trouble seeing how the wearing of T-shirts is going to cause disruption, much less that it will lead to any particular results in the casting of ballots," Cabranes said.
Gerarde said that part of the school's concern was to prevent students from disrupting the election by casting ballots for Doninger; in fact, a majority of students did write in her name, but their votes were disqualified. But under questioning from the judges, he acknowledged that the school would not take the position that it could punish the casting of a protest vote for Doninger as a disruption.
Gerarde said that the case was unlike Tinker because of the well-publicized blog controversy that preceded the election assembly, making it reasonable for Niehoff to anticipate student unrest.
But Schoenhorn responded that the Des Moines school administrators in the Tinker case also had reason to anticipate unrest -- and the armbands did actually provoke some disputes -- yet the speech was constitutionally protected.
As is customary, the appeals court took the case under advisement and did not indicate when it would rule. Rulings typically take at least six months.