Avery Doninger was disqualified by officials at Lewis Mills High School ("LMHS"), in Burlington, Connecticut, from running for senior class secretary after posting on her weblog a "vulgar and misleading message about the supposed cancellation" of a school event called "Jamfest". Doninger and her mother sued to force LMHS to allow her to run for secretary, which was denied by a U.S. district court (See School Law Notes, November 21, 2007). They appealed the decision, but the Second Circuit Court of Appeals held that Doninger's constitutional rights were not violated when LMHS officials decided to punish her for her speech even though it was posted off-campus. Doninger v
Niehoff, __ F3d __ (CA 2, 2008).
As discussed in depth previously in School Law Notes, Doninger, who was then the junior class secretary, was upset when the LMHS administration planned to postpone a student-sponsored event called "Jamfest," which had been postponed twice previously. In response, Doninger posted a negative and "vulgar" rant on her blog urging people to call and email the district superintendent and LMHS principal. The principal came upon the blog and refused to allow Doninger to run for, or be elected to, the office of senior class secretary as a result of the post. Doninger's mother then sued the school district to force the district to allow her daughter to run for the student council position.
The U.S. District Court of Connecticut, however, declined to grant such an injunctive order.
In upholding the school district's decision, the court stated that "a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct 'would foreseeably create a risk of substantial disruption within the school environment,' at least when it was similarly foreseeable that the off-campus expression might also reach campus." In determining that the school
ldistrict could discipline the student, the court considered two main points. First, school districts may "prohibit the use of vulgar and offensive terms in public discourse." Bethel Sch Dist No 403 v Fraser, 478 US 675, 683 (1986). Second, school districts may prohibit student expression that will
"materially and substantially disrupt the work and discipline of the school." Tinker v Des Moines Indep Cmty Sch Dist, 393 US 503, 513 (1969).
The court found that had Doninger made these same statements on a leaflet and passed it out on campus it could be prohibited as plainly offensive speech under Fraser. Moreover, the off-campus speech was intended to come on campus. The nature of the blog and the fact that school had been disrupted through multiple meetings during school hours and numerous telephone calls to the central office showed that the blog created a foreseeable risk of substantial disruption within the school in violation of Tinker. The court ruled two other factors justified the school district's decision. First, not only was the posting vulgar, but it also was misleading; namely, Jamfest was not "canceled" as the blog stated. This misinformation encouraged disruption on campus. Second, Doninger was not suspended from school but was merely prohibited from an extracurricular activity, which is a privilege. The punishment here did not intrude upon Doninger's education and did not violate
her First Amendment rights.
The Doninger case is not binding in Michigan; however, the case relied heavily on precedent binding in this case. Michigan state and federal courts may, therefore, find this case persuasive.
