A federal district court in Connecticut has granted qualified immunity to the high school principal and the school district superintendent who punished a student for calling school administrators "douchebags" on her blog.  Doninger v. Niehoff, No. 3:07-cv-1129 (D. Conn. filed Jan. 15, 2009).  This decision comes as no real surprise in a circuit that lately has proven hostile to student speech rights in the digital age, but it nevertheless demonstrates the need for greater clarity in the law governing this area.

CMLP's legal threats database contains a complete summary of the facts of Doninger v. Niehoff. In the spring of 2007, junior class secretary Avery Doninger was frustrated with the decision of school officials regarding "Jamfest," a yearly music festival that she had been planning. She wrote about her concerns in a Livejournal blog post, where, among other things, Doninger called school administrators "douchebags" and asked students and parents to call the school superintendent to complain in order to "piss her off more." When school officials learned about the comments Doninger had made online, they punished her by disqualifying her from running for class secretary during her senior year. In addition, they forbade her classmates from wearing "Team Avery" t-shirts on the day candidates for student office were giving election speeches.

Soon thereafter, Doninger asked the federal district court to enter a preliminary injunction requiring the school to permit her to run for senior class president. The district court concluded that Doninger had not shown a likelihood of success on the merits of her claim and denied her request for injunction relief.  Doninger v. Niehoff, 514 F.Supp.2d 199, 203 (D.Conn. 2007). The district court gave two alternative bases for its decision. First, the court held that Doninger had no actionable First Amendment claim because the school simply banned her from participating in an extracurricular activity, in which a student has no "right" to participate. The court suggested that schools did not have completely unbridled authority to restrict their students' participation in extracurricular activities-for example, to make such decisions on the basis of a student's race or religion-but at least in this case, the school officials were free to exercise their discretion to ban Doninger from participating in a "voluntary" school activity. In the alternative, the district court held that the school could rely on the Supreme Court's holding in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), which permitted schools to punish students who use vulgar or lewd speech on campus, because it was "reasonably foreseeable" that Doninger's blog post, although created off-campus, would come to the attention of school officials. This holding rested on a broad application of Wisniewski v. Bd. of Educ., 494 F.3d 34, 40 (2d Cir. 2007), in which the Second Circuit held that schools may constitutionally punish online speech under the Supreme Court's decision in Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969), when it is reasonably foreseeable that the speech would come to the attention of school officials and when that speech will materially and substantially disrupt with work of the school.

The Court of Appeals for the Second Circuit affirmed, but on other grounds. The appellate court agreed that Doninger's blog post could be treated as "on campus" speech because it was "reasonably foreseeable" that students would read it and that school administrators would become aware of it. But rather than rely on Fraser, the Second Circuit based its decision on the Supreme Court's decision in Tinker. The Second Circuit explained that Doninger's blog post posed a risk of substantial disruption by requiring the school to spend time to correct the blog's allegedly false claim that Jamfest had been canceled rather than simply postponed, by disrupting school efforts to resolve the controversy surrounding the festival, and by undermining the proper functioning of student government. The Second Circuit declined to review the district court's holding that a school could rely on Fraser to punish students for lewd or vulgar online speech when it is reasonably foreseeable that the speech will come to the attention of school administrators, but without posing a risk of substantial disruption on campus. Like the district court, however, the appellate court hedged the scope of its decision by noting that it had "no occasion to consider whether a different, more serious consequence than disqualification from student office would raise constitutional concerns."

After the Second Circuit's opinion, the case was sent back down to the district court, where, after a period of discovery, the school officials filed a motion for summary judgment. In its most recent opinion, the district court conceded that evidence revealed during discovery would permit a jury to conclude that school officials punished Doninger because they disapproved of her use of the word "douchebags" in her blog post, and not because the blog post threatened to disrupt the school's efforts to resolve the Jamfest controversy. Significantly, the principal testified that she punished Ms. Doninger because the blog entry "demonstrate[d] lack of citizenship" and because she thought "the word douchebags itself [was] a horrible word." In addition, discovery revealed that school officials had not discovered Doninger's blog post until long after the dispute regarding Jamfest had been resolved.

The court nevertheless went on to dismiss Doninger's claim on the grounds of qualified immunity. Qualified immunity protects public officials from lawsuits for damages unless their conduct violates clearly established rights of which an objectively reasonable official would have known. In this case, the district court first held that it was far from clear that Doninger had a "right" to participate an extracurricular activity like student government. Second, the district court held that it is unclear whether school officials can rely on Fraser to punish students for lewd speech occurring off-campus. The court concluded that ‘[i]f courts and legal scholars cannot discern the contours of First Amendment protections for student internet speech, then it is certainly unreasonable to expect school administrators, such as Defendants, to predict where the line between on- and off-campus speech will be drawn in this new digital era."

Given that the district court in Doninger initially rejected the plaintiff's First Amendment claims, its recent decision to grant qualified immunity to the defendant school officials should come as no real surprise. That said, the series of decisions in the case are deeply disturbing on a number of levels. First, there can be no question that Doninger was engaging in political speech regarding the conduct of school officials, which lies at the heart of the First Amendment. "Douchebags" is not the nicest thing to call someone, but it is hardly as offensive as some of the other speech, see Cohen v. California, 403 U.S. 15 (1971) ("Fuck the Draft" case), and expressive conduct, see Texas v. Johnson, 491 U.S. 397 (1989) (flag burning), the Supreme Court has protected. Allowing a state actor to restrict political speech, no matter how "colorful," should not be done lightly.

Second, courts should be reluctant to apply Fraser to off-campus Internet speech because that case does not require a showing that the offensive expression disrupted or could reasonably be expected to disrupt school activities. Because Fraser does not require the school to make this showing, schools could restrict any indecent speech by a student, anywhere regardless of where he engages in it, without any additional showing. The idea that schools could regulate offensive speech on the Internet without showing any harm to the school would give school officials virtually limitless authority to police their students' expression, and this should give courts pause. Although students have somewhat limited free speech rights while they are at school, they are entitled to full free speech protections outside of school. (See my blog post on the First Amendment rights of children.) As Sam Bayard's recent blog post mentioned, the Third Circuit is currently considering whether Fraser applies to off-campus speech in two separate cases, Layshock v. Hermitage School District, and J.S. v. Blue Mountain School District.

Finally, it is disturbing that the district court gave the school officials a free pass to censor student speech because they merely punished Doninger by banning her from serving as a class officer, and not by suspending or expelling her from school. At least one other court has taken this same view. See Lowery v. Euverard, 497 F.3d 584 (6th Cir. 2007) (rejecting First Amendment claims of football players barred from team after they signed petition for removal of their coach). In theory, this approach draws support from the Supreme Court's Fourth Amendment jurisprudence. In Pottawatomie County v. Earls, 536 U.S. 822 (2002), the Court held that it is constitutional for a high school to administer a drug-testing program to all students engaged in extracurricular activities. Justice Ginsburg authored a scathing dissent in this case in which she noted what a valuable role extracurricular activities play in secondary school education, and how such activities are hardly considered "voluntary" for any college-bound student. Even putting aside the question of whether extracurricular activities are truly voluntary, at least in Earls the school could point to the need to counteract the "nationwide drug epidemic." The school's interest in preventing students from saying offensive things about their teachers and school administrators hardly rises to the level of the need to combat drug use. Furthermore, students have no legal right to use drugs off school grounds; students do, however, have a constitutionally protected right to free expression.

For the sake of full disclosure, it is worth mentioning that the district court permitted a much less interesting portion of Doninger's case to go forward to trial. The court denied the defendants' motion for summary judgment on Doninger's claim based on the school's refusal to allow students to wear "Team Avery" t-shirts. The court concluded that this claim rested on a relatively straight-forward application of Tinker. The school had failed to present any evidence that the t-shirts threatened the orderly operation of the school or that the ban on t-shirts was the result of a content-neutral ban of t-shirts generally or of election materials. The court concluded that the only remaining issue for the jury is whether Doninger suffered any injury to her expressive rights as a result of the t-shirt ban. This is small comfort for a student who was essentially kicked out of student government for offending the delicate sensibilities of school administrators.

For more on the Doninger lawsuit, see the CMLP's legal threats entry Doninger v. Niehoff.