School Allowed To Punish Student For Calling Officials 'Douchebags' On Her Blog
from the eye-of-the-beholder dept
There have been plenty of lawsuits, with widely varying results, concerning the ability of schools to punish or sanction students for activity off-campus. The law here is very much in flux, and the different rulings often depend very much on the specific details of the acts in question. In this latest case, a student who was running for Senior Class Secretary was officially barred from running, from speaking at an assembly for the candidates, and then from accepting the position after she was elected anyway... because she had complained publicly about what happened with a "battle-of-the-bands" event called Jamfest. The details on what happened with Jamfest are a bit disputed, but either way, the student, Avery Doninger, wrote up a blog post that referred to school officials as "douchebags," concerning their actions related to Jamfest, which resulted in the school's actions over the student council election.The court doesn't appear to have a problem with the school's action, and lawyer John E. Ottaviani, who wrote up the post linked above seems to agree. I'm not so certain. The school seems to have blocked both some of her speech, punished her for her speech and then blocked others from speaking out as well (banning other students from wearing t-shirts in support of Doninger). Yes, schools have the right to discipline students for violating policy, but it seems that a line is crossed when it involves barring expression, which seems clear happened here.
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Filed Under: douchebags, free speech, students
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SCHOOL IS RIGHT!
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adorable!
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Not sure why she didn't sue the school/district itself (or if she did and that's just not addressed in the ruling).
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The school is clearly in the wrong here when they decide that someone's opinion must be abated as well as the support of the same person by others. These kids will be ready for Washington D.C. before they graduate!
/sarcasm
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Re: Disruption
The common claim of "disruption" of school activities is just a catch-all that lets school officials punish anything they don't like. If a kid does something that isn't a violation of any school policy, but which is nevertheless something the teacher or principal doesn't like, they just deem it "disruptive" and ban it or punish the kid for it.
It's analogous to the "disorderly conduct" charge that cops use. If you're doing something a cop doesn't like and he/she can't find anything under the penal code to charge you with, they'll just say you're being disorderly and hook you up for that.
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And was school so disrupted that it warranted a violation of her Constitutional right? I think not.
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Im sorry little girl the guy who runs our very expensive equipment can't make that night don't make a federal case out of it, oh wait you did.
Seriously a school is not a democracy. If she violates the rules of conduct for being a student body leader, then she can't be a student body leader. If she tries to incite protest over something as silly as a scheduling issue why should she be the voice of the students. (probably cause high school kids are more emotion than logic, shhhut up).
I'm with Goldman, the mom should of smacked the kid for acting like a baby. The girl can learn that you can't go get bent out of shape over little things, fly off the handle and not get punished for your actions.
The school didn't suspend her or discipline her, they just kept her from being an officer for displaying character unbecoming of an officer. Courts shoulda tossed this sooner.
Can we transfer that frivolous lawsuit penalty from the other girl, from the article earlier today, to this one?
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I did forget to thank you for pointing out the guest author on the goldman blog
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The fact that she "violated a policy" doesn't make a difference, if the policy is that you can't engage in certain types of speech.
Also, Goldman didn't write that post and court didn't decide whether this was a violation of the First Amendment.
No way was this case frivolous.
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Schools are allowed to limit the behavior of their students to keep order. Schools also have the right to set a dress code. These kids should be happy they dont have to wear uniforms. They don't have to allow the kids to protest, no matter how subtle, during school hours.
She wasn't punished for her actions, she was denied a privilege. She was denied that privilege because she violated policies that must be upheld to have that privilege. Then the school did what they could to keep it from becoming an issue.
Nothing was stopping these kids from speaking out, or protesting outside of school events. The kids were not punished for trying to protest, just told they had to remove their shirts.
They didn't bar her expression, she spoke and faced the consequences. I have the right to send out a company wide email calling my boss a douchebag but I will probably face consequences. If he fires me do you think I should sue him? If he tells people that they can get in trouble for wearing "Rehire Hothmonster" t-shirts to work should they sue him?
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"Overall, the Second Circuit appears to have reached the proper conclusion here. The court emphasized that the discipline was relatively minor, and that Ms. Doninger’s conduct violated several written school policies to which she had agreed. Ms. Doninger did not simply make the comments orally, on in text messages sent to her friends with some expectation that the school officails would not see them. Rather, she posted her comments on a public website and then made sure school officals would see them by inciting readers to contact the school officials. Unlike some other school discipline cases involving off campus postings or communications (see here and here), the principal here did not overreact. Ms. Doninger was not suspended, and the students were given the choice as to whether to hold the concert on the original date but in the cafeteria, or on a new date in the auditorium. Ms. Doninger was sanctioned because her conduct was viewed as inappropriate for a class officer in that school."
"I’m a big defender of the First Amendment, but this case appears to be another example of what we were taught in law school that “bad facts make bad law.” There is no significant freedom of speech issue here, just a refusal by a student and her parent to accept consequences for the student’s bad behavior. Ms. Doninger graduated in 2008, and is now attending college. It’s time to move on."
from the article mike links to in the main article
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His statements regarding overreaction don't really seem relevant to the First Amendment issue, and he doesn't really explain why they would be.
The court might have reached the right result here, but that's because it didn't address whether the school officials' actions violated her First Amendment rights.
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They are allowed to not let he be a representative of the school for calling them douchebags and inciting protest.
They didn't expell her or even give her a detention. They just said with conduct like this we don't want you on the student council.
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Says who? The court certainly didn't say so. Punishing students for criticism is not generally allowed.
The nature of punishment (expulsion, suspension, revoking privileges, etc.) doesn't change what it is.
That's separate from the actual prevention of speech (i.e., you can't wear that shirt promoting the candidate of your choice).
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My point wasn't that she wasn't punished just that the punishent fit the crime.
There was a productive way to react to the reschedualing and an unproductive way. She choose unproductive and faced the consequences.
There was a reasonable way for the school react and plenty of irrational ways. I think they responded pretty reasonably.
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Please explain what non-speech-related aspects of the policy she violated?
I don't know how many times I need to say it, but the fact that something is "school policy" is irrelevant, the violation of the policy is protected speech/expression.
Simply not liking this girl's actions is also irrelevant to the First Amendment question. There are plenty of idiots engaging in idiotic speech that is nonetheless protected by the First Amendment.
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However, I think you are probably right in this case, and the school has overstepped its bounds, because of that important detail: the speech happened outside school. As with so many laws, the internet confuses everything, because suddenly speech from outside the school is read inside it without being physically distributed on school property (as opposed to, say, printing up posters calling a teacher a douchebag at home then bringing them to school). I can see why it's a bit confusing from a first amendment standpoint but, ultimately, I don't see how they can really take any action based on her livejournal...
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Accessing personal email from a school computer for one, also like I said I don't have there handbook so I don't really know.
Marcus I agree with you that the internet muddles everything relating to this. The way I see it though is she brought the speech "back to the school" by calling out for parents and students to piss off the principal and superintendent. Like your making posters at home and bringing them to school analogy.
This wasn't something she meant to say between her friends and family and the school "overheard" this was posted for them to see, or at least to bring push the issue at school. It was not a private discussion it was a call to arms.
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Now, admittedly, using the term douchebag was probably a dumb idea. But it's really, really important to remember that the first amendment doesn't just protect eloquent speech - protection is about intent and purpose, not maturity or standards of debate.
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No thats not how I see it in this case. If they had suspended or given her detention for it I might see it differently. But being a school officer there is a manner in which you are suppose to conduct yourself and carry out school business. As the judges say a school officers is suppose to provide "continuous communication channel from students to both faculty and administration." They then go on to say "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. Here, however, pursuant to Tinker and its progeny, it was objectively reasonable for school officials to conclude that Doninger’s behavior was potentially disruptive of student government functions (such as the organization of Jamfest) and that Doninger was not free to engage in such behavior while serving as a class representative — a representative charged with working with these very same school officials to carry out her responsibilities."
I mean look at this from start to finish. Here is a student council rep who is given the task of organizing jamfest. The schools says we have to move the date or the venue. She runs off writes an email saying the school has canceled it and we need to get everyone to protest. The principal calls her down to the office and say "Look we are not canceling it we just can't have it in that auditorium on that day, we have a good reason, would you like to change the day or the place? She agrees to change the place, apologizes for the email and sends out an email explaining the date change. Then she goes home writes a blog post basically lying, saying the school is canceling jamfest and we need to protest to get it back.
She isn't acting like a leader, or a voice that connects staff and students. She is acting like a whiny brat. She is not acting like an officer and made them question her ability to work with the school when organizing school events. The decided she can't run for reelection. They even waited to tell her because she had a bunch of tests going on and they didn't want to upset her and screw up her academics.
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She wasn't expressing there best interest. She was lying about what the school was saying and inciting protest when a conversation would have sufficed. She actually did have the conversation then lied about what was said because she didn't like the results. She was making mountains out of mole hills when it was her job to describe the mole hills.
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So she actually was practicing for a future in politics? :P
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All of those things are provably disruptive, whereas wearing a t-shirt, complaining on a blog (even if the post in question was written on a school machine), or wearing black armbands is not provably disruptive. Therein lies the difference between regulated speech and unregulated speech.
Similarly, you can tell your friends, the Internet, or a judge himself in public that a judge is a douchebag, but you can't call him a douchebag in the courtroom.
Anyway, as many court cases have shown, only speech that provably disrupts can be curtailed, and it has to be disrupted by the wearer, not by others disturbed by the wearing (i.e. gay rights shirts.).
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Yeah they did, read page 25 again.
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Again, "policy" is irrelevant. If the "policy" were "no criticism of Republicans" that would obviously violate her First Amendment rights. So, simply repeating that she violated "policy" is not persuasive. (For a good website on how school policies might violate the First Amendment, see thefire.org).
Telling someone they can't wear a shirt supporting a certain message *is* saying they can't speak out. This is basic First Amendment stuff.
What your company does is irrelevant, unless it's a government agency. The First Amendment only applies to government action.
Whether or not she's a brat is irrelevant to the legal matter.
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"Telling someone they can't wear a shirt supporting a certain message *is* saying they can't speak out."
Telling them they can't wear it at a certain event is not. They are allowed to set rules for behavior and conduct at school events. Some kid wouldn't be allowed to stand in the back of the auditorium yelling "You'll a bunch of motherfuckers" or wear a shirt that says "gays are fags" either. They are allowed to set rules for conduct and appearance at school events.
The school never said you can never wear those shirts, or that if you get caught wearing it outside of school you will get punished. They barred them from school events, that is allowed. The kids were free to leave school and wear whatever they wanted or complain about whatever they would like.
What if I do work for the government? Lets say i work at the DMV. Am I allowed to email the staff and call the entire administration a bunch of douchebags and expect them to say, oh thats ok we are american if he wants to tell our staff we are douchebags because we told him he can't have friday off because 10 other people already took friday off more power to him, in fact we may want to promote this ballsy guy.
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Barring speech (e.g., shirts) because it is protesting a school's decision is not, generally, allowed. I have a hard time believeing that a "Team Avery" shirt is going to disrupt the learning environment.
There is a long line of cases addressing when government employees can or cannot be punished based on their speech, and it's not analogous to students in public schools.
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A lot of rights are violated on school grounds. Teachers can't talk about prayer, students have no protection from search and seizure, certain topics are barred from being taught. Schools are given a lot of leeway to create a safe enviroment that propgates learning. Telling kids what they can wear is one of those powers we have given them.
If they had barred them from protesting outside of school or punished them for doing so I would be right behind you but I think its well within their power to tell them a shirt is unacceptable.
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There is plenty of case law saying schools do not have carte blanche authority to prevent kids from wearing certain things. They must justify such restrictions.
Again, I have a hard time believing a "Team Avery" shirt meets the requirements.
Here's a starting point: http://en.wikipedia.org/wiki/Tinker_v._Des_Moines_Independent_Community_School_District#Subsequent_j urisprudence
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They assumed it would cause problems with the election and the assembly. They may have been right or wrong, but even if they were wrong it was a reasonable mistake.
Seeing as how they were not going to let her be on the council having people vote for her does kinda contaminate the election. Also I can see the possibility of it turning the assembly into a fiasco even though it may not have. Rereading the judgment, the kids were allowed to wear the shirts in school just not during the assembly for the election speeches. So its fair to say they didn't want people to disrupt other students speeches.
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The government can't deny someone a privilege based on their exercise of a guaranteed right.
Driving is also a privilege, not a right. If the government denied someone a driver's license because they engaged in some protest and said something the government didn't like, it would be no defense for the government to say in response to a constitutional challenge, "Well, driving is just a privilege so we can do whatever we want."
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She was an officer of the school when she sent posted a blog page inciting confrontation. I don't have there student officer handbook but I'm pretty sure it says something about acting as an ambassador to the school or not asking students and parents to piss off the principle and superintendent because an event was canceled when really it was moved to a different venue because the guy who does lights and sound at the original venue can't make it. She agreed to this shit when she became an officer, she violated it, now she doesn't get to run for office again.
She was prohibited from partaking in a voluntary extracurricular activity. If you called your football coach a douche he doesn't have to let you play on the team. If you try to get the chess team to riot because the bus will be an hour later than expected you don't get to be on the chess team.
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Really? You have a signed contract?
Or do you mean the school has a policy, which no one has ever read, that states her responsibilities as a member of student government.
How much do you want to bet that such a policy includes responsibilities like "lead your classmates to safety during an air-raid" because no one has read it or updated it in 60 years.
Also, you have repeated (like 50 times) that "the school has a policy" but it hasn't become any more relevant. No policy can negate a constitutional right. The court has allowed schools to limit student speech under specific circumstances, but I still don't see why this qualifies. If she wasn't actually creating a disruption at school and the students supporting her were not actually creating disruption I don't see why a school should be able to proactively ban behavior.
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"Similarly, Doninger’s discipline extended only to her role as a student government representative: she was not suspended from classes or punished in any other way. Given that Doninger, in serving in such a position, was to help maintain a “continuous communication channel from students to both faculty and administration,” it was not unreasonable for Niehoff to conclude that Doninger, by posting an incendiary blog post in the midst of an ongoing school controversy, had demonstrated her unwillingness properly to carry out this role. 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. Here, however, pursuant to Tinker and its progeny, it was objectively reasonable for school officials to conclude that Doninger’s behavior was potentially disruptive of student government functions (such as the organization of Jamfest) and that Doninger was not free to engage in such behavior while serving as a class representative — a representative charged with working with these very same school officials to carry out her responsibilities."
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His/her claim was that denying someone a privilege
(a) isn't a punishment, and
(b) is justified because the government can do whatever it likes with privileges, since they're not rights.
That simply isn't true. The school's actions may be legally justified in this case, but it isn't because serving on student council is a privilege and the government can take it away for whatever reasons it likes.
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Free speech is a right, not a privilege. Anything that chills or punishes speech is unConstitutional.
The school can certainly have a code of conduct for its student officers.
And that code of conduct cannot contain any speech-block rules, such as blocking members from calling school officials douchebags or restricting political T-shirts.
They don't have to allow the kids to protest, no matter how subtle, during school hours.
Yes, they do, you idiot. Children don't lose their rights at the schoolhouse gate, not that you're going to catch the quote, anyway.
She was denied that privilege because she violated policies that must be upheld to have that privilege.
She was denied a privilege because she exercised her civil rights. FTFY
Then the school did what they could to keep it from becoming an issue.
Then the school violated her civil rights and caused a huge issue, rather than just letting one teen vent a little bit, as most teens do.
Nothing was stopping these kids from speaking out, or protesting outside of school events.
Except being punished, like the plaintiff was.
The kids were not punished for trying to protest, just told they had to remove their shirts.
The kids were punished by having their civil rights violated.
They didn't bar her expression, she spoke and faced the consequences.
Punishment for expression is a bar of expression.
I have the right to send out a company wide email calling my boss a douchebag but I will probably face consequences.
And if you work for a private company, that's not illegal.
If he fires me do you think I should sue him?
Do you work for a private company? If not, then no.
If he tells people that they can get in trouble for wearing "Rehire Hothmonster" t-shirts to work should they sue him?
Again, were you fired from a private company? If not, then no.
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Tinker gives kids back a lot of rights because up and till then they pretty much did lose all rights at the schoolhouse door. It does not give them freedom to do or say anything, and kids most certainly can not say or wear or protest freely in schools.
Schools are allowed to prevent speech that disrupts the learning environment. They are not allowed to oppress one thing(gay rights) while supporting the opposite(anti-gay sentiment).
"[A] State may permissibly determine that, at least in some precisely delineated areas, a child--like someone in a captive audience--is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees" Thats from tinker.
But here is the big kicker from tinker "First Amendment rights are available to teachers and students, subject to application in light of the special characteristics of the school environment." AND "prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments."
In this case they said that they staff believed the shirts would cause a disruption at the assembly and interfere with the kids elections speeches. While they may have been wrong and the shirts may not have had that effect if they were wrong it was a reasonable mistake.
"Again, were you fired from a private company? If not, then no." Lets say I work at the DMV am I allowed to send out company wide emails calling my bosses douchebags without expecting disciplinary measures?
The rest of this has been responded to elsewhere in this thread.
Thanks for being the first to resort to name calling.
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Yes, they can. Take five seconds and peruse the ACLU's site to see what happens when these cases go to court.
Obviously, many schools break the law and haves rules against and punish children who engage in political protest (and many parents allow them to get away with it), but that certainly doesn't make it legal.
Schools are allowed to prevent speech that disrupts the learning environment.
Only if it actually disrupts the learning environment. Fear of disruption is not enough. Or did you not even scan through Tinker?
"...prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments."
Yes, that's exactly what I've been saying.
In this case they said that they staff believed the shirts would cause a disruption at the assembly and interfere with the kids elections speeches. While they may have been wrong and the shirts may not have had that effect if they were wrong it was a reasonable mistake.
Did you not just read what you copied and pasted? They must have evidence that their actions are necessary to avoid substantial interference. No reasonable person could see either of those things happening with some silly T-shirts. (But I could see it happening with a banning of those shirts, so they really created the only interference that existed.)
"Again, were you fired from a private company? If not, then no." Lets say I work at the DMV am I allowed to send out company wide emails calling my bosses douchebags without expecting disciplinary measures?
Did you do it while using a work computer? If not, then no. Think about it. What if you say that your boss is a douchebag on Facebook, or at a BBQ? There is no difference there, and your speech is protected in all cases.
The rest of this has been responded to elsewhere in this thread.
Meaning that you have no response, because I'm right.
Thanks for being the first to resort to name calling.
Free speech is a wonderful thing. It allows everyone, even students, to point out the idiots and douchebags without fear of legal repercussion. :)
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By the way...
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Schools
But, there is a lesson here. The lesson is for her not to refer to those in charge as douchebags. Even though the term many exactly express what she is feeling she is, probably, guilty of libel. She needs to learn to express herself as an adult rather than a child. And if she wants to deal them a hurt then she needs to do it in a creative way.
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No, she's definitely not guilty of libel, because no reasonable person would actually consider the possibility that the human being(s?) in question were actually bags for holding the fluid used in douching.
It was an opinion, with no claim of fact, about a matter of public interest, so any libel claim would be lost at least three ways right there.
Also, it would be pretty hard to prove injury, which is a requirement for libel cases. I mean, can you imagine a school employee standing up in court and claiming, with a straight face, that their reputation had been damaged because yet another teen had called them a douchebag? Really? :P
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first amendment..
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Now, this girl can say that "Words didn't work!" and can resort to the fists in my opinion.
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very clear to see what is going on here
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This is too easy
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Students will have to make a big deal out of this, and file suit. This would be the only way to get their free speech back. Let a Judge decide.
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