In Doninger v. Niehoff, the U.S. Court of Appeals for the Second Circuit ruled in May that a Connecticut school district that disciplined a student for vulgar and derogatory remarks made off-campus did not violate her free speech rights.
Avery Doninger had served on the student council and was the junior class secretary at Lewis S. Hills High School in Burlington in the 2006-2007 school year. She graduated last June.
It started with a student council planned event, known as Jamfest, that had planning setbacks in the spring of 2007. Four members of the student council, including Doninger, sought community support through a mass e-mailing encouraging the recipients to contact the superintendent and principal to schedule the event. Following the e-mail, the principal and superintendent were inundated with e-mail messages and phone calls.
According to Doninger, the principal told her that Jamfest was cancelled because of the students’ action. The principal denied saying that. That evening, Doninger posted an entry on her personal blog in which she noted that Jamfest had been cancelled, referred to the district administrators as “douchebags,” and encouraged continued contact with the superintendent to “piss her off more.” The following day the event was rescheduled. Sometime later school officials
Foreseeably Creating a Risk
The appeals court acknowledged that the Supreme Court had not yet addressed the scope of a school’s authority to regulate off-campus speech. The court noted a prior ruling in Wisniewski v. Board of Education 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." became aware of Doninger’s blog posting and barred her from running for senior class secretary. The district court denied Doninger’s petition for an injunction.
The appeals court found that it was reasonably foreseeable that Doninger’s posting would reach campus and that the posting created a foreseeable risk of substantial disruption within the school environment because the language used was offensive. It likely disrupted efforts to resolve the controversy, and the posting that Jamfest had been cancelled made it foreseeable that school operations might well be disrupted further.
No Evidence of Disruption
While the expression of the legal standard in Doninger clearly supports the ability of school officials to rely on the Tinker substantial disruption standard to intervene in cyberbullying cases, it is my opinion that this standard was inappropriately applied in the situation set forth in the Doninger case.
There was no evidence of any disruption at school. The only disruption was to the principal and superintendent in responding to what was an impressive response to the student’s call for complaints. There was no indication in the record that the disruption interfered in any way with the delivery of instruction or in any way impacted student welfare.
If administrators are not being appropriately sensitive to the interests of students or are engaging in other actions that cause concern, students clearly should have the free speech right to protest and to call for other students and community members to register their complaints. Inconveniencing school administrators under such circumstances should not be considered to constitute substantial disruption.
Our Founding Fathers called King George a tyrant in the Declaration of Independence. It is my hope that this decision is reviewed by the U.S. Supreme Court and is reversed, while maintaining the legitimacy of the legal standard itself. —N.W.