Doninger
v. Niehoff, et al (2d Cir. 2008)
Facts
of the Case
This case comes from Lewis Mills High School, in the Connecticut Region #10
School District. Administrators barred a Connecticut high school student from
running in a student election after the student criticized administrators
online for their handling of a student festival. In the spring of 2007,
Jamfest, a yearly music festival at a Connecticut high school, experienced a
series of planning setbacks that threatened to postpone or cancel the event.
When Avery Doninger – a junior and incumbent class secretary – was unable to
meet with the school's principal, Karissa Niehoff, to talk about the event she
and three other students
sent a mass e-mail asking members of the community to speak to administrators
about putting the event back on schedule. Doninger and Niehoff later had a
discussion in the hallway, during which she says Niehoff informed her that the
event had been cancelled. That night, Doninger wrote a Livejournal blog post criticizing the school officials' handling of the issue. In the post, she called the school officials “douchebags” and asked her fellow students and their parents to complain to school superintendent Schwartz in order “to piss [Schwartz] off more” than the mass e-mail had.
In response to her blog post, the school barred Doninger from running for reelection as Class Secretary for her senior year. At the class election, school officials prevented a group of students from wearing “Team Avery” t-shirts. According to school principal Niehoff, the t-shirt ban was intended to prevent electioneering by candidates and supporters who could afford such merchandise.
Questions to Consider
1.
Did the school district violate the First Amendment
rights of Avery Doninger, when they forbade her to run for student office,
because of her offensive vulgar language?
2.
Did the Connecticut District make the wrong judgment
when they ruled in favor of the school district?
Issues for Avery Doninger
1. This
action violates free speech
2. The
blog post was not written in school, it was written at home
3.
The district court erroneously
concluded that the defendants did not violate plaintiff’s daughter’s first
amendment rights, after she posted comments on a public internet website from
her home. Because this was not “school speech” the defendants acted without
authority by punishing for her protected speech.
4.
Even if the posting to the internet
were to be treated as “school speech,” the defendants violated Avery’s first
amendment rights because her speech contained a political
message that neither caused, nor was likely to cause, substantial disruption to
the educational process.
5.
The Connecticut Constitution’s
protections for free speech are broader than those contained in the first
amendment, and would prohibit the censorship of student expression that
occurred here.
6.
The plaintiff’s daughter was treated
differently than other similarly situated student leaders and sanctioned
because the school principal disagreed with the constitutionally protected
political message that she posted on a public internet website, in violation of
the equal protection clause of the fourteenth amendment.
(Note: The Fourteenth Amendment made
the Bill of Right Applicable to the States)
Issues supporting Karissa Niehoff and Paula Swartz
1. Just
because this blog was written off campus, it was about the school, so thus it
has become a school issue
2. This
speech has caused disruption, and schools may banish speech that is disruptive
to school
3. In
accordance with 106 S. Ct 3159 educators are permitted to exercise editorial
control over school-sponsored activities, such as school publications and or
theatrical productions, as long as their actions are reasonably related to
legitimate pedagogical concerns (does this damage the learning atmosphere of
the students)
4. The
Supreme Court has determined that public schools may take steps to safeguard
those entrusted to their care from speech that can unreasonably harm the
educational process
5. The
school has not retaliated by suspending or expelling the student, the school
has just taken away the “privilege” for running for a student leadership
position
Issues
for the Judge to consider
A government official is protected by qualified
immunity if his or her “conduct did not violate a clearly established
constitutional right or if it was objectively reasonable for the [official] to
believe that his conduct did not violate such a right.” A right is “clearly
established,” Livingston continued, if it is “defined with reasonable clarity,”
recognized by the U.S. Supreme Court or the 2nd Circuit, and “a reasonable
defendant would have understood that his conduct was unlawful.”
Finding that Niehoff and Schwartz were entitled to a
claim of qualified immunity in refusing to allow students to wear them. “We
agree that a reasonable fact-finder could conclude that Defendants were
mistaken in assessing the likely impact of the t-shirts and thus the
permissibility of prohibiting them pursuant to Tinker,” Livingston
wrote, “however, we conclude that any such mistake was reasonable.” Because the
administrators’ decision was reasonable, qualified immunity should be extended,
the court ruled. “The law governing restrictions on student speech can be
difficult and confusing, even for lawyers, law professors, and judges,”
Livingston wrote, adding, “‘School principals,’ as the Supreme Court has
recently noted, ‘have a difficult job.
1. Is
it true that, if students, or staff brought up the blog post in school, does it
mean that, this is now an issue brought unto school grounds?
2. So
am I protected by free speech, if I go a crowded public place and falsely yell
BOMB causing a panic?
3. Counsel
given how busy courts are and everything we decide, why should we bother to
hear this case, of basically a high school student not getting their way?
4. When
the Founding Fathers wrote the First Amendment, could they have been thinking
of blogs such as these?
5. What
about a blog saying vulgar things about Taylor Swif.t that could be accessed
from the school library computers?
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
U.S.
Constitution, Amendment I
Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or right of the
people to peaceably to assemble, and to petition the Government for a redress
of grievances.
U.S.
Constitution, Amendment XIV (14), Section 1
All persons born or naturalized in
the United States and subject to the jurisdiction therof,
are citizens of the United States
and of the State wherein they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
Conn.
Const. Art. I, § 4
Every citizen may freely speak,
write and publish his sentiments on all subjects,
being responsible for the abuse of
that liberty.
Conn.
Const. Art. I, § 5
No law shall ever be passed to
curtail or restrain the liberty of speech or of the press.
Conn.
Const. Art. I, § 14
The citizens have a right, in a
peaceable manner, to assemble for their common good,
and to apply to those invested with
the powers of government, for redress of grievances, or other proper purposes,
by petition, address or remonstrance.
Title
42 U.S.C. § 1983. Civil action for deprivation or rights.
Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory of the
District of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress, . . .
Roles
Petitioner:
Avery Doninger
·
Head Counsel: facilitates and argues the
case
·
Lawyer: argues the case
·
Paralegal: Prepares the case
·
Paralegal: Prepares the case
Respondent:
Karissa Niehoff et al. (Region 10 School District)
·
General Counsel: facilitates and argues
the case
·
Lawyer: facilitates and argues the case
·
Paralegal: prepares the case
·
Paralegal: prepares the case
Amicus
Curiae “Friend of the Court” (2 Amicus)
·
These people can also argue in favor of
Doninger or Niehoff
Marshal
of the Court
·
Head Law Enforcement Official of the
Court
·
To call the court into order
·
Keep the time
·
Each party has a total of 5 five minutes
Time
Allotment (14 Minutes Total)
·
Each party is allotted five minutes of
oral argument
·
Doninger goes first- 5 minutes
·
Niehoff goes second- 5 minutes
·
Amicus has a minute each (2)
·
Doninger has the rebuttal for 2 minutes (Doninger’s
Amicus can argue during this time)
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