Doninger v. Niehoff: Second Circuit Allows School District Discipline of Student for Statements Made on Student’s Personal Blog

The United States Court of Appeals for the Second Circuit recently upheld the discipline of a Connecticut high school student who criticized the school administration on her blog for rescheduling a student battle of the bands called “Jamfest.” Avery Doninger, who was at the time the Junior Class Secretary at Lewis S. Mills High School (“LMHS”), posted from her home computer and on her personal blog that was unaffiliated with the school, that “jamfest is cancelled due to douchebags in central office.” School officials barred Doninger from running for Senior Class Secretary, but she was not otherwise disciplined. Additionally, Doninger and other students were prohibited from wearing a t-shirt which read “Team Avery” on the front and “Support LSM Freedom of Speech” on the back at the school election assembly.

Doninger and her mother brought suit in federal court alleging that the school administrators violated her free-speech rights under the First Amendment by (1) prohibiting her from running for Senior Class Secretary and (2) prohibiting her and her supporters from wearing “Team Avery” t-shirts to the school assembly. The Second Circuit granted school officials qualified immunity on both grounds, finding that Doninger’s First Amendment rights in these contexts were not clearly established.

The court found that “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.” Further, it was “not clearly established at the time of these events that Doninger had any First Amendment right not to be prohibited from running for Senior Class Secretary because of offensive off-campus speech, at least when such speech pertained to a school event, invited students to read and respond to it by contacting school administrators, and it was reasonably foreseeable ‘that the speech would come on to campus and thus come to the attention of school authorities.’”

We cannot predict whether the federal and state courts in California would render the same decision but this case demonstrates that courts do recognize the ability of schools to discipline students for conduct and/or speech on the internet.

Link to "Doninger v. Niehoff"

Meghan Covert Russell

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On Friday, November 5, 2010, Judge Frank Damrell of the United States District Court, Eastern District of California, entered judgment in favor of Sacramento City Unified School District in a case originally filed in 1998. The case was brought by a taxpayer group who claim the use of Waldorf methods in public schools violates the United States Constitution's First Amendment prohibition against the establishment of religion.

The plaintiffs claim that Waldorf methods stem from, and are inseparable from "Anthroposophy," which they claim is a religion. Anthroposophy and Waldorf education were both created by Austrian Rudolf Steiner in the 19th century. The parties have battled this issue for years, and a bench trial was held on August 31, 2010 on the threshold issue of whether anthroposophy is a religion for Establishment Clause purposes. The judge's written decision issued last week found that plaintiffs failed to prove that anthroposophy is a religion.

This is an important victory for public schools across California as increasing numbers of public schools incorporate Waldorf methods into their curriculum and instructional delivery. Without a finding that anthroposophy is a religion for Establishment Clause purposes, plaintiffs' claims that Waldorf methods are "religious" fail and cannot support a constitutional challenge.

The KMTG litigation team included lead counsel Michelle Cannon, Diana Halpenny, Chris Keiner, and Chelsea Olson.

The Sacramento Bee reported on the decision on November 6, 2010. To read the story, click here.

To read Judge Damrell's decision, please click here.

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