Avery Doninger Free Speech Update: Online, Off-Campus Comments Punishable, Court Says
NEW YORK — Connecticut school officials cannot be held liable for their decision to discipline a student for an Internet posting she wrote off school grounds, a federal appeals court ruled Monday as it defended the leeway given school administrators who act reasonably when confronted with dilemmas that test the boundaries of what is Constitutionally protected.
The 2nd U.S. Court of Appeals in Manhattan sided with Burlington, Conn., school officials after they punished Avery Doninger by preventing her from serving as class secretary as a senior.
Doninger sued the administrators at Lewis B. Mills High School, saying her free speech and equal protection rights were violated after she distributed the 2007 posting criticizing administrators for canceling a popular school activity. A lower judge had twice ruled school officials were entitled to immunity.
A three-judge panel of the 2nd Circuit agreed.
"To be clear, we do not conclude in any way that school administrators are immune from First Amendment scrutiny when they react to student speech by limiting students' participation in extracurricular activities," the court wrote.
But the panel said it was "objectively reasonable" for school officials to conclude that Doninger's behavior was potentially disruptive of student government functions and that she was not free to engage in such behavior without repercussions while serving as a class representative. She was junior class secretary at the time
Her lawyer, Jon Schoenhorn, called the ruling "very disappointing" and said he expected to appeal after speaking with his client, now a student at Eastern Connecticut State University.
He said the decision represented a "landslide erosion" of First Amendment rights for students and seemed to go farther than other student-related rulings.
In a 2009 decision, U.S. District Judge Mark Kravitz in Burlington, Conn., had noted that the speed with which students can communicate to hundreds of classmates at a time through the Internet had changed the dynamics of school communications since 1979, when a landmark student speech case set boundaries for schools regulating off-campus speech.
"Off-campus speech can become on-campus speech with the click of a mouse," Kravitz wrote at the time. Qualified immunity, which Kravitz and the 2nd Circuit relied upon, shields public officials from lawsuits for damages unless they violate clearly established rights that a reasonable official would have known.
The appeals court did overturn Kravitz's decision to let to proceed to trial Doninger's claim that her right to free speech was "chilled" when an administrator prohibited students from wearing T-shirts that read "Team Avery" to a student council assembly.
The 2nd Circuit said it agreed that a jury could find that the school administrators were mistaken in assessing the likely impact of the T-shirts and the permissibility of prohibiting them, but added that such a mistake was reasonable.
It added that school officials deserve a degree of latitude.
"The law governing restrictions on student speech can be difficult and confusing, even for lawyers, law professors and judges. The relevant Supreme Court cases can be hard to reconcile, and courts often struggle to determine which standard applies in any particular case.
Thomas Gerarde, attorney for Regional School District 10, said he was pleased that the administrators were vindicated.
"The message from the court is clear and consistent," he said. "The message is that it will support the actions of school leaders when dealing with conduct that disrupts the educational process whether that conduct occurs on-campus or off-campus."
The case was brought after Doninger in 2007 wrote in her blog after the school canceled a popular event she helped plan. The event was later rescheduled.
Administrators prohibited Doninger from seeking re-election as class secretary, but she refused to withdraw her candidacy and won as a write-in candidate. The school then barred her from serving.
Doninger, who graduated in 2008, did not immediately respond to a message sent to her for comment.
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Associated Press Writer Pat Eaton-Robb in Hartford, Conn., contributed to this report.
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LARRY NEUMEISTER 04/25/11 04:14 PM ET Associated Press