Friday, May 30, 2008


Editor's Note: See Essay By Avery Doninger Following Hartford Courant Story

What Would Corrupt School Bosses Do
If There Was An Actual Disruption
Beyond Any Disruption They Caused Themselves?

Notably, Court Failed
To Hold Anyone Accountable
For Stealing An Election

Following Injunction Denial, Glimmer Of Hope Remains
In Trial That Will Come Far Too Late For Justice

Appeals Court Rules Against Burlington Student


"If this [blog post] was potentially disruptive, then they might as well empty out half of the schools of not just Connecticut but probably in this country,"

-- Atty Jon. Schoenhorn

Schoenhorn noted that the rulings were based on a limited record and predicted that the courts would rule differently once the full case is heard in a trial

Courant Staff Writer
May 30, 2008

Ruling in a case that addresses broad questions of the boundaries of free speech in the Internet age, a federal appeals court on Thursday effectively ended a Burlington student's effort to serve as a class officer and speak at graduation.

The ruling by the U.S. 2nd Circuit Court of Appeals in New York only addressed a preliminary issue in the case of Avery Doninger, a senior at Lewis S. Mills High School, who has argued that school district administrators violated her First Amendment rights by disciplining her for a blog post she wrote off school grounds.

But the court's ruling weighed in on a hotly contested and evolving area of the law, freedom of expression on the Internet. The three-judge panel stopped short of declaring how far schools can go in regulating offensive Internet speech made off campus, but stated that the school did not violate the Constitution in disciplining Doninger because her blog post "created a foreseeable risk of substantial disruption" at the school.

Thursday's ruling addressed a request by Doninger's attorney for an injunction to allow Doninger to serve as class secretary, which she was barred from doing because of the blog post. A federal district court judge rejected the request last year, finding that Doninger had not proven a substantial likelihood of challenging the constitutionality of her punishment. The appeals court agreed.

Thomas R. Gerarde, an attorney for defendants Paula Schwartz, the former Region 10 superintendent, and Mills Principal Karissa Niehoff, said the rulings by both courts "exonerated" the school district administrators.

"It's a very, very decided victory for Region 10. There's no other way to look at this," he said.

Jon L. Schoenhorn, Doninger's attorney, said the ruling could "emasculate the First Amendment rights of students."

"If this [blog post] was potentially disruptive, then they might as well empty out half of the schools of not just Connecticut but probably in this country," he said.

Schoenhorn noted that the rulings were based on a limited record and predicted that the courts would rule differently once the full case is heard in a trial.

A disappointed Lauren Doninger, Avery's mother, said she and her daughter had always planned to go to trial for reasons beyond the student government and graduation.

"We filed for an injunction because we really hoped to somehow hold on to part of this senior year experience for Avery," she said. "That's not going to happen, but that doesn't change that we need to move forward to trial. We need to really explore student speech rights at the judicial level in the age of the Internet."

The case originated in a dispute last spring about the Burlington school's Jamfest, a battle of the bands that Doninger helped coordinate. Frustrated that it was not going ahead as planned, Doninger wrote on her Weblog that "Jamfest is canceled due to the douchebags in central office." She encouraged others to write or call Schwartz "to piss her off more."

Jamfest wasn't actually canceled, and was later rescheduled. Administrators found the blog entry about two weeks after Doninger wrote it, and Niehoff told Doninger to apologize to Schwartz, show her mother the post and stop seeking re-election as class secretary.

Doninger agreed to the first two, but refused to withdraw her candidacy. Though Doninger was not allowed to run, enough students wrote in her name that she won. She was barred from serving.

The appeals court based much of its analysis on the 2nd Circuit case Wisniewski v. Board of Education of the Weedsport Central School District in New York, in which a student was suspended after creating an instant-messaging icon that suggested his teacher should be shot. The court upheld the suspension last year, saying it was reasonable to expect the icon would come to the attention of school authorities and could create a risk of substantial disruption to the school environment.

In Doninger's case, the court wrote, the blog post was designed to reach the school campus and generated student response, contained misleading information and could potentially disrupt efforts to resolve the Jamfest controversy.

The disruption the blog post caused, the court wrote, included students getting riled and administrators receiving phone calls and e-mails that made them miss or come late to school-related activities.

Even so, the ruling said, the relevant issue was not whether disruption occurred but whether school officials "might reasonably portend disruption."

Schoenhorn said he was concerned with the application of the Wisniewski case, which involved a threat to shoot a teacher, to Doninger's writing.

"They appear to equate words with bullets," he said. "And that is a scary prospect to me."

The court also emphasized that Doninger's discipline barred her from an extracurricular activity, and that the blog post was inconsistent with the school's policy that student government representatives have a record of good citizenship.

The case did not allow the court to consider "whether a different, more serious consequence than disqualification from student office would raise constitutional concerns," the ruling stated.

Contact Arielle Levin Becker at

  • FOI Commission Orders Douche Bag Lawyer To Produce Uncensored Legal Bills

  • Freedom Of Information Report.

  • Douchebagarama, In Technicolor: aka The Actual Hearing For This FOI Case On CT-N

  • Scales of Justice


    This year I have come to understand why liberty and justice are symbolized with scales. There is much to be balanced and decisions can weigh heavy. Since May 2007, a series of good and bad decisions, made not only by me, but also by others, has led me on a journey filled with risk and rich in learning opportunities.

    The first decision that I made reflected positively on my character. I invested myself fully in student government and worked diligently in my elected positions. Frustrated over scheduling snags and short-notice cancellation of a school event (Jamfest), I went home and posted a blog on an obscure Live Journal page. In the blog I encouraged people to petition our administration -- a good decision; it was political speech. The bad decision was the opening line, "Jamfest is cancelled due to the douchebags in central office." Not my finest moment.

    Along with other student leaders I rallied community support for Jamfest and the event was rescheduled. However, my decision to use an unsavory term was still sitting out there on the scales of justice, waiting to be weighed. A month after the scheduling was resolved, an administrator stumbled across my blog. Consequently, the principal punished me. She said I had to apologize to the superintendent, tell my mother, step down from all leadership positions, and withdraw my candidacy for secretary of the Class of 2008 (I had been secretary for three years). This was when the lessons from my civics class became increasingly relevant to my life. I agreed to the principal's first two requirements, but I refused the third.

    The school administrator's had their own scales of justice -- my opinion did not tip the balance, and the punishment was final. Efforts to negotiate with the administrators were refused. A write-in campaign by my peers (I won a plurality of votes) was ignored; and "Team Avery, Support LSM Freedom of Speech" t-shirts were confiscated (illegal according to Tinker). As I researched civil rights and school law, my scale tipped, and I filed a lawsuit. This was a hard decision; I've never been in trouble: I am an engaged student, yet I did use an unsavory word. My mother also put my word choice on her scale of justice. She found my comment rude, sophomoric, and below the standards she has set. My mother's verdict, as one commentator put it, "Avery, you're grounded and we're going to the Supreme Court" (Colin McEnroe, October 2, 2007, WTIC am 1080).

    At age 16 I became a citizen fully engaged in the democratic process. I filed for injunctive relief: not suing for money but for justice. I testified for four hours in federal court; I have done tons of print and broadcast interviews; I have spoken to large audiences about my story and the First Amendment rights; and I was the poster child for Poets and Writers for Free Speech. I have learned the big cases decided by the Supreme Court as well as how my case is distinguished. Most important, however, are the lessons that have become apart of me.

    I believe in democracy. I believe in the Constitution and the Bill of Rights. I believe that each citizen is responsible for participating in the maintenance of democracy by challenging government officials when they overreach. The principal accused me of a failing to be a good citizen. I disagree. Apathy and passivity are poor citizenship. Rallying students and the community to petition the government is good citizenship. I failed at vocabulary, not citizenship. However, the First Amendment does not limit protection to those with sophisticated vocabularies (though I will not make the error of rudeness again).

    Democracy is a gift that Americans have inherited, but it requires maintenance and vigilance. Democracy needs to be retained at the lowest levels if we are to have a democracy at the highest levels. If as citizens we refuse to defend liberty in our own backyards, how do we expect to bring democracy to Iraq or Korea or any place suffering under tyranny? Civil liberties are eroded slowly when citizens don't bother to insist on challenging unconstitutional practices. Citizens, particularly students who are the next generation of leaders, must be willing to take on the responsibility of maintaining and protecting democracy while enjoying the rights democracy affords.

    Eventually, the scales of justice will determine whether students have speech rights off campus in the age of the Internet and whether there is a difference between shouldn't have said and didn't have the right to say. No matter the outcome in court, I am proud that I was willing to engage in the democratic and judicial processes. I will continue to defend civil rights, to think critically, and to consider the ramifications of my word choices. While I don't plan to live my life according to bumper stickers, I am going to think globally and act locally.

    Following is a Readers Digest version of the Doninger case:

    Avery Doninger, a senior at Lewis S. Mills High School in Burlington, CT, has a civil rights trial pending in New Haven U.S. District Court. She and her mother, Lauren Doninger, sued Principal Karissa Niehoff and Superintendent Paula Schwartz after they removed Avery from the ballot for Class of 2008 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 are seeking -- among other remedies -- an apology for civil rights violations, recognition of the write-in victory and sharing of the secretary position with the administration-backed candidate.

    New Haven U.S. District Judge Mark Kravitz denied a motion for a preliminary injunction [immediate relief] last fall and his ruling was appealed to the Second Circuit in New York. That appeal ruling was posted May 29.


    Anonymous said...

    Was anyone really surpirsed by the Rulings. Not to trivialize such an important issue and such "important" jurists, but all my crushed mind could think was: "Birds of a feather fly together."

    Who's going boating with Mark Kravitz and John Robert's this weekend!!

    (Anonymous) because there really is no free speech anymore. We are all "dangerous"

    Anonymous said...

    Click my link to discuss this matter anonymously...

    The webmasters don't care if you register with a BS name and email.

    They also don't log IP addresses.