Dispatches from the Creation Wars

I think an appellate judge on the lower courts who consistently acts with modesty and precision like Alito and Sotomayor supposedly did can and do come onto the Supreme Court either prepared to instead act on principle as Ed advocates or develop into such a justice as time passes and they become either comfortable with such powers or lustful for them. I'm skeptical either Roberts or Alito's claimed preferences for modesty will last, especially if they lose some cases they're passionate about.

So I hope the attributes Ed wants in a judge are discussed in the Committee Hearings. I don't think they will be however since Democrats in general continue to cower in fear of Republican rhetoric regarding justice rather than support Obama by taking a stand on jurisprudence that is different than the false talking points by Republicans. Just like Clinton had to pull them into being more pro-economic growth, Obama appears to be pulling a reluctant and meek caucus into being proud to be on the side of liberty rights, to the point an ex-Bush solicitor, Ted Olson, recently upstaged them on equal rights for a discriminated against minority that favors Democrats!

I think the way to promote Ed's approach, which I strongly support, and preemptively understand how judges will act is to make the Senate Judiciary confirmation hearings meaningful by having the committee-members make a deal that no nominee gets a committee vote until they've answered questions on constitutional principles to a great level of detail. When the right and the left start rewarding their own based on their divulgence of their views the added information will both inform the public, reward such divulgence, and out extremists prior to appointment like we experienced with Bork.

The idea that judges can't comment on controversies or preferred style of jurisprudence is intellectual cowardice, enabled by the Senate itself for no arguable reason, including pending cases (one can stick to questions and answers on general principles). Cowardice on the Senate's part, its prudent for nominees to avoid such questions if they can elected without any divulgence on their part.

Justices get a life-time appointment, their arguments on incorporation of the 14th Amendment, a critique on previous interpretations of the Interstate Commerce and 'necessary and proper' clauses, and the plain meaning and ramifications of the 9th Amendment, should be finely picked through prior to a floor vote, not discovered post-appointment. This idea to avoid grilling nominations on the core issues they are uniquely empowered to employ after being appointed is one of the most idiotic legacies I've ever experienced, it's like a car manufacturer purposefully covering their eyes prior to assemblying a car.

Posted by: Michael Heath | June 2, 2009 10:59 AM

Doninger was decided after Morse v Frederick, the "Bong Hits 4 Jesus" case. The language in Morse is so broad that almost any school-related activity a student attempts is pulled in as something subject to school regulation: If the school is mentioned or otherwise implicated, apparently it is a "school-related activity." Judge Sotomayor probably felt bound by that precedent in Doninger; with luck, she will bring a differing opinion to the Court.

Posted by: kehrsam | June 2, 2009 11:06 AM

I know, read the damn opinion before you post, Kurt. Here is the relevant text from the opinion, p9-14.

likelihood of success on the merits. 6 I. The First Amendment Claim 7 We begin with some basic principles. It is axiomatic that students do not “shed their 8 constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des 9 Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). It is equally the case that the 10 constitutional rights of students in public school “are not automatically coextensive with the rights 11 of adults in other settings,” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986), but must 12 instead be applied in a manner consistent with the “special characteristics of the school 13 environment,” Tinker, 393 U.S. at 506. Thus, school administrators may prohibit student expression 14 that will “materially and substantially disrupt the work and discipline of the school.” Id. at 513. 15 Vulgar or offensive speech — speech that an adult making a political point might have a 16 constitutional right to employ — may legitimately give rise to disciplinary action by a school, given 17 the school’s responsibility for “teaching students the boundaries of socially appropriate behavior.” 18 Fraser, 478 U.S. at 681. Similarly, so long as their actions are “reasonably related to legitimate 19 pedagogical concerns,” educators are entitled to exercise editorial control over school-sponsored 20 expressive activities such as school publications or theatrical productions. Hazelwood Sch. Dist. v. 21 Kuhlmeier, 484 U.S. 260, 273 (1988). Such controls “assure that participants learn whatever lessons 22 the activity is designed to teach, that readers or listeners are not exposed to material that may be The Wisniewski panel divided on the question 1 whether it was necessary in that case to show that it was reasonably foreseeable that the expression at issue would reach school property. Two panel members concluded that the undisputed fact that it did so “pretermit[ted] any inquiry as to this aspect of reasonable foreseeability.” 494 F.3d at 39. 11 1 inappropriate for their level of maturity, and that the views of the individual speaker are not 2 erroneously attributed to the school.” Id. at 271. Finally, given the special nature of the school 3 environment and the “serious and palpable” dangers posed by student drug abuse, public schools 4 may also “take steps to safeguard those entrusted to their care from speech that can reasonably be 5 regarded as encouraging illegal drug use.” Morse v. Frederick, 551 U.S. —, 127 S. Ct. 2618, 2622, 6 2629 (2007). 7 The Supreme Court has yet to speak on the scope of a school’s authority to regulate 8 expression that, like Avery’s, does not occur on school grounds or at a school-sponsored event. We 9 have determined, however, that a student may be disciplined for expressive conduct, even conduct 10 occurring off school grounds, when this conduct “would foreseeably create a risk of substantial 11 disruption within the school environment,” at least when it was similarly foreseeable that the off- 12 campus expression might also reach campus. Wisniewski v. Bd. of Educ., 494 F.3d 34, 40 (2d Cir. 13 2007), cert. denied, 128 S. Ct. — (2008).1 We are acutely attentive in this context to the need to draw 14 a clear line between student activity that “affects matter of legitimate concern to the school 15 community,” and activity that does not. Thomas v. Bd. of Educ., 607 F.2d 1043, 1058 n.13 (2d Cir. 16 1979) (Newman, J., concurring in the result). But as Judge Newman accurately observed some years 17 ago, “territoriality is not necessarily a useful concept in determining the limit of [school 18 administrators’] authority.” Id. True enough in 1979, this observation is even more apt today, when 19 students both on and off campus routinely participate in school affairs, as well as in other expressive 12 1 activity unrelated to the school community, via blog postings, instant messaging, and other forms 2 of electronic communication. It is against this background that we consider whether the district court 3 abused its discretion in concluding that Doninger failed to demonstrate a clear likelihood of success 4 on the merits of her First Amendment claim. 5 A. 6 If Avery had distributed her electronic posting as a handbill on school grounds, this case 7 would fall squarely within the Supreme Court’s precedents recognizing that the nature of a student’s 8 First Amendment rights must be understood in light of the special characteristics of the school 9 environment and that, in particular, offensive forms of expression may by prohibited. See Fraser, 10 478 U.S. at 682-83. As the Supreme Court explained in Fraser, a school may regulate “plainly 11 offensive” speech — that is, speech that is “offensively lewd and indecent” — in furtherance of its 12 important mission to “inculcate the habits and manners of civility,” both as values in themselves and 13 because they are indispensable to democratic self-government. Id. at 681, 683, 685. As the Court 14 noted, “[t]he undoubted freedom to advocate unpopular and controversial views in schools must be 15 balanced against the society’s countervailing interest in teaching students the boundaries of socially 16 appropriate behavior.” Id. at 681. It is thus “a highly appropriate function of public school education 17 to prohibit the use of vulgar and offensive terms in public discourse.” Id. at 683. 18 To be clear, Fraser does not justify restricting a student’s speech merely because it is 19 inconsistent with an educator’s sensibilities; its reference to “plainly offensive speech” must be 20 understood in light of the vulgar, lewd, and sexually explicit language that was at issue in that case. 21 We need not conclusively determine Fraser’s scope, however, to be satisfied that Avery’s posting 22 — in which she called school administrators “douchebags” and encouraged others to contact 13 1 Schwartz “to piss her off more” — contained the sort of language that properly may be prohibited 2 in schools. See id. Fraser itself approvingly quoted Judge Newman’s memorable observation in 3 Thomas that “the First Amendment gives a high school student the classroom right to wear Tinker’s 4 armband, but not Cohen’s jacket.” Fraser, 478 U.S. at 682-83 (quoting Thomas, 607 F.2d at 1057 5 (Newman, J., concurring in the result)); cf. Cohen v. California, 403 U.S. 15 (1971) (holding that 6 adult could not be prosecuted for wearing jacket displaying expletive). Avery’s language, had it 7 occurred in the classroom, would have fallen within Fraser and its recognition that nothing in the 8 First Amendment prohibits school authorities from discouraging inappropriate language in the school 9 environment. 10 B. 11 It is not clear, however, that Fraser applies to off-campus speech. Doninger’s principal 12 argument on appeal is that because Avery’s posting took place within the confines of her home, it 13 was beyond the school’s regulatory authority unless it was reasonably foreseeable that the posting 14 would create a risk of substantial disruption within the school environment — the standard 15 enunciated in Tinker and Wisniewski, and a standard, Doninger argues, that the present record does 16 not satisfy. Appellees argue, in contrast, that the Tinker test is not the only standard for determining 17 whether school discipline may properly be imposed for off-campus expressive activity. They contend 18 that in Wisniewski, we implicitly affirmed that schools may regulate off-campus offensive speech 19 of the sort in which Avery engaged, so long as it is likely to come to the attention of school 20 authorities. We reject appellees’ broad reading of Wisniewski on the ground that we had no occasion 21 to decide in that case whether Fraser governs such off-campus student expression. We agree, 22 however, with appellees’ alternative argument that, as in Wisniewski, the Tinker standard has been In reaching this conclusion, we acknowledge 2 that the district court did not expressly rely on Tinker to determine that Doninger was unlikely to succeed on her First Amendment claim. We nevertheless may “affirm the district court’s judgment on any ground appearing in the record, even if the ground is different from the one relied on by the district court.” ACEquip, Ltd. v. Am. Eng’g Corp., 315 F.3d 151, 155 (2d Cir. 2003). 14 1 adequately established here.2 We therefore need not decide whether other standards may apply when 2 considering the extent to which a school may discipline off-campus speech. 3 Tinker provides that school administrators may prohibit student expression that will 4 “materially and substantially disrupt the work and discipline of the school.” Tinker, 393 U.S. at 513. 5 In Wisniewski, we applied this standard to an eighth grader’s off-campus creation and Internet 6 transmission to some fifteen friends of a crudely drawn icon that “depict[ed] and call[ed] for the 7 killing of his teacher.” 494 F.3d at 38. We recognized that off-campus conduct of this sort “can 8 create a foreseeable risk of substantial disruption within a school” and that, in such circumstances, 9 its off-campus character does not necessarily insulate the student from school discipline. Id. at 39. 10 We determined that school discipline was permissible because it was reasonably foreseeable that the 11 icon would come to the attention of school authorities and that it would create a risk of substantial 12 disruption. See id. at 39-40. 13 Applying the framework set forth in Wisniewski, the record amply supports the district 14 court’s conclusion that it was reasonably foreseeable that Avery’s posting would reach school 15 property. Indeed, the district court found that her posting, although created off-campus, “was 16 purposely designed by Avery to come onto the campus.” Doninger, 514 F. Supp. 2d at 216. The blog 17 posting directly pertained to events at LMHS, and Avery’s intent in writing it was specifically “to 18 encourage her fellow students to read and respond.” Id. at 206. As the district court found, “Avery 19 knew other LMHS community members were likely to read [her posting].” Id. at 217. Several 15 1 students did in fact post comments in response to Avery and, as in Wisniewski, the posting managed 2 to reach school administrators. See Wisniewski, 494 F.3d at 39. The district court thus correctly 3 determined that in these circumstances, “it was reasonably foreseeable that other LMHS students 4 would view the blog and that school administrators would become aware of it.” Doninger, 515 F. 5 Supp. 2d at 217. 6 Contrary to Doninger’s protestations, moreover, the record also supports the conclusion that 7 Avery’s posting “foreseeably create[d] a risk of substantial disruption within the school 8 environment.” Wisniewski, 494 F.3d at 40. There are three factors in particular on which we rely to 9 reach this conclusion. First, the language with which Avery chose to encourage others to contact the 10 administration was not only plainly offensive, but also potentially disruptive of efforts to resolve the 11 ongoing controversy. Her chosen words — in essence, that others should call the “douchebags” in 12 the central office to “piss [them] off more” — were hardly conducive to cooperative conflict 13 resolution. Indeed, at least one LMHS student (the one who referred to Schwartz as a “dirty whore”) 14 responded to the post’s vulgar and, in this circumstance, potentially incendiary language with similar 15 such language, thus evidencing that the nature of Avery’s efforts to recruit could create a risk of 16 disruption. 17 Second, and perhaps more significantly, Avery’s post used the “at best misleading and at 18 wors[t] false” information that Jamfest had been cancelled in her effort to solicit more calls and 19 emails to Schwartz. Doninger, 514 F. Supp. 2d at 202. The district court found that Avery “strongly 20 suggested in her [post] that Jamfest had been cancelled, full stop, despite the fact that Ms. Niehoff, 21 even according to Avery’s own testimony, offered the possibility of rescheduling Jamfest later in the 22 school year.” Id. at 214. This misleading information was disseminated amidst circulating rumors 3This “reasonable forecast” test applies both to instances of prior restraint, where school authorities prohibit or limit expression before publication, and to cases like this one, where Avery’s disqualification from student office followed as a consequence of the post she had already made available to other students. See Boucher v. Sch. Bd. Of Greenfield, 134 F.3d 821, 828 (7th Cir. 1998); see also Wisniewski, 494 F.3d at 40 (applying “foreseeable risk of 16 1 of Jamfest’s cancellation that had already begun to disrupt school activities. Avery herself testified 2 that by the morning of April 25, students were “all riled up” and that a sit-in was threatened because 3 students believed the event would not be held. Schwartz and Niehoff had received a deluge of calls 4 and emails, causing both to miss or be late to school-related activities. Id. at 206. Moreover, Avery 5 and the other students who participated in writing the mass email were called away either from class 6 or other activities on the morning of April 25 because of the need to manage the growing dispute, 7 as were Miller, Hill, and Fortin. It was foreseeable in this context that school operations might well 8 be disrupted further by the need to correct misinformation as a consequence of Avery’s post. 9 Although Doninger argues that Tinker is not satisfied here because the burgeoning 10 controversy at LMHS may have stemmed not from Avery’s posting, but rather from the mass email 11 of April 24, this argument is misguided insofar as it implies that Tinker requires a showing of actual 12 disruption to justify a restraint on student speech. As the Sixth Circuit recently elaborated, “[s]chool 13 officials have an affirmative duty to not only ameliorate the harmful effects of disruptions, but to 14 prevent them from happening in the first place.” Lowery v. Euverard, 497 F.3d 584, 596 (6th Cir. 15 2007); see also LaVine v. Blaine Sch. Dist., 257 F.3d 981, 989 (9th Cir. 2001) (“Tinker does not 16 require school officials to wait until disruption actually occurs before they may act.”). The question 17 is not whether there has been actual disruption, but whether school officials “might reasonably 18 portend disruption” from the student expression at issue. LaVine, 257 F.3d at 989; see also Nuxoll 19 v. Indian Prairie Sch. Dist. #204, — F.3d —, 2008 WL 1813137, at *5 (7th Cir. 2008).3 Here, given substantial disruption” test where student was disciplined for expression that had already been disseminated to other students and reached the school). 17 1 the circumstances surrounding the Jamfest dispute, Avery’s conduct posed a substantial risk that 2 LMHS administrators and teachers would be further diverted from their core educational 3 responsibilities by the need to dissipate misguided anger or confusion over Jamfest’s purported 4 cancellation. 5 Finally, the district court correctly determined that it is of no small significance that the 6 discipline here related to Avery’s extracurricular role as a student government leader. The district 7 court found this significant in part because participation in voluntary, extracurricular activities is a 8 “privilege” that can be rescinded when students fail to comply with the obligations inherent in the 9 activities themselves. Doninger, 514 F. Supp. 2d at 214. We consider the relevance of this factor 10 instead in the context of Tinker and its recognition that student expression may legitimately be 11 regulated when school officials reasonably conclude that it will “materially and substantially disrupt 12 the work and discipline of the school.” Tinker, 393 U.S. at 513. More specifically, Avery’s conduct 13 risked not only disruption of efforts to settle the Jamfest dispute, but also frustration of the proper 14 operation of LMHS’s student government and undermining of the values that student government, 15 as an extracurricular activity, is designed to promote. Doninger, 514 F. Supp. 2d at 215; cf. 16 Hazelwood, 484 U.S. at 273 (holding that educators may exercise control over school-sponsored 17 expressive activities “so long as their actions are reasonably related to legitimate pedagogical 18 concerns”). 19 In this way, the instant case bears similarity to Lowery v. Euverard, which involved a group 20 of high school football players who were removed from the team after signing a petition expressing 18 1 their hatred of the coach and their desire not to play for him. The players lodged a First Amendment 2 claim and the Sixth Circuit determined that the relevant question under Tinker was whether it was 3 reasonable for school officials “to forecast that the petition would disrupt the team” — meaning that 4 the petition might foreseeably frustrate efforts to teach the values of sportsmanship and team 5 cohesiveness through participation in sport as an extracurricular activity. Lowery, 497 F.3d at 593, 6 596. The court noted that the players had not been suspended from school or even prevented from 7 further criticizing the coach: “[T]hey are free to continue their campaign to have Euverard fired. 8 What they are not free to do is continue to play football for him while actively working to undermine 9 his authority.” Id. at 600 (emphases omitted). The court held that there had been no First Amendment 10 violation. 11 Similarly, Avery was disqualified from running for Senior Class Secretary after school 12 administrators determined that her behavior was not “consistent with her desired role as a class 13 leader” — meaning in this context that it was inconsistent with LMHS school policy providing that 14 student government should teach good citizenship and that any student who does not maintain a 15 record of such citizenship may not represent fellow students. Doninger, 514 F. Supp. 2d at 215. The 16 district court determined not only that Avery’s posting was offensive and misleading, but also that 17 it “clearly violate[d] the school policy of civility and cooperative conflict resolution.” Id. at 214. The 18 court credited Niehoff’s testimony that class officers are expected to “work toward the objectives 19 of the Student Council, work cooperatively with their advisor and with the administration, and 20 promote good citizenship both in school and out.” Id. The court explicitly found, moreover, that 21 Niehoff advised Avery of these responsibilities during their conversation on April 24, and that she 22 told Avery that the original Jamfest email and its approach to conflict resolution with the 19 1 administration were inappropriate. Id. As the district court observed, “[u]nderstandably, then, Ms. 2 Niehoff testified that a factor of particular relevance in her disciplinary decision was the fact that 3 Avery posted her blog entry” — which reproduced the email Niehoff had criticized — “the very 4 evening of the day on which that conversation occurred.” Id. 5 Given the cumulative effect of these findings, clearly supported by the record, we conclude 6 that the district court did not abuse its discretion in determining that Doninger failed to demonstrate 7 a sufficient likelihood of success on her First Amendment claim. We are mindful that, given the 8 posture of this case, we have no occasion to consider whether a different, more serious consequence 9 than disqualification from student office would raise constitutional concerns. See Wisniewski, 494 10 F.3d at 40. We decide only that based on the existing record, Avery’s post created a foreseeable risk 11 of substantial disruption to the work and discipline of the school and that Doninger has thus failed 12 to show clearly that Avery’s First Amendment rights were violated when she was disqualified from 13 running for Senior Class Secretary.

I can't say I'm overly bothered by this. I would prefer students had the relatively full free speech rights granted by Tinker, but that ship sailed a long time ago, as the literature review here shows. I don't think the panel had any other choice available.

Posted by: kehrsam | June 2, 2009 11:25 AM

Brian: Because as the quoted section notes, Plaintiff's at home conduct was intended to create a disruption through student protest, and did, in fact, lead to a certain amount of disruption at the school (the April 11 group email critical of the administration was sent from a school work station).

Like I said, it's not what I would argue if I were a Supreme, but it is clearly what the current precedents hold. As Judge Sotomayor merely joined a unanimous decision, I don't see how the case is much relevant to her confirmation. I do agree that thorough questioning on student freedoms is an important part of the confirmation process.

Kurt

Posted by: kehrsam | June 2, 2009 12:14 PM

She joined 95% of all opinions written for three-judge panels when the other two were GOPuke appointees.

She is no free-thinker. If anything, quite the opposite. Her sympathies --no, not empathy-- seem overwhelmingly to be with the status quo, corporatist, globalist, authoritarian interpretation.

I'd say she's the very best choice the Pukes could have hoped for.

Posted by: Woody | June 2, 2009 3:26 PM

Even if administrators were overwhelmed with messages, the panel's decision to designate the speech as posing a "foreseeable risk of substantial disruption" is still strange. They used that language in a spirit opposed to the way it was originally used in Tinker v. Des Moines, where the court ruled that no substantial disruption was imminent and included this thoughtful clause in the ruling: "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Sotomayor and her peers might have benefited from a closer reading of that landmark case.

FYI, we're talking about Sotomayor and free speech all this week on the blog of the National Coalition Against Censorship.

Posted by: Hannah | June 2, 2009 4:55 PM

@Hannah #12:

Even if administrators were overwhelmed with messages, the panel's decision to designate the speech as posing a "foreseeable risk of substantial disruption" is still strange.

I'm lost here. Down which rabbit hole is taking up the school administrators' time dealing with abusive messages raising a grievance over an incident which didn't actually happened, instead of doing the work they were hired to do, not disruptive? The finding of fact in Tinker is irrelevant - the wearing of armbands with consequent possibility of disruption by those opposed to the armbands (Tinker) is of a different nature to actively inciting those who agree with you actually to disrupt school business (Doninger).

@Douglas #11:

The activity did actually disrupt the educational process; that's why Kurt changed his mind, after reading he case, on whether the discipline applied to Doninger was justifiable.

You've also missed the state of caselaw which means that student's First Amendment rights in respect of school business are not co-extensive with adult's rights outside that context. It is most emphatically not a good outcome that schoolchildren are incited by lies to call school staff dirty whores - that would have been grounds for expulsion in my time at school. Firstly, schools are perfectly entitled to sanction dishonesty; second they are perfectly entitled to sanction that kind of abuse coming from a schoolchild. If they don't learn civility, and the ability to disagree with someone without dehumanising them, as children at school, where is USAan political discourse going to go? You might end up with people like Rush Limbaugh dominating the airwaves...

Posted by: Robin Levett | June 2, 2009 5:19 PM

I have to say media coverage of this case has been thoroughly (though sadly typically) uninformative. I still have only a foggy idea of just what were the student's original grievance and the administration's original response, how the letter of complaint (not the blog posting) violated school policy, or the overall order of events. And as the above the above two replies demonstrate, there doesn't even seem to be a consensus on whether the dance contest at the centre of the mess was actually held or not! Is there anywhere that the case background is gathered together in a reasonably concise way?

Posted by: Spaghettini | June 2, 2009 6:42 PM

while in this particular instance, the teen might indeed deserve the disciplinary action she received (the whole thing is too murky for me to deal with right now), I have to say that teen rights in the U.S. are in an abysmal state; teens are treated like little kids, and then when they turn 18/21, they have all kinds of freedom and responsibility dumped on them that they've not actually learned to use until then. Parents and schools are both guilty of that, by overprotecting teens on the one hand, and disregarding their opinions etc. on the other; you end up with people who've not been taken seriously for 18 years, and who have been told what to do at every instance... and that's supposed to produce responsible, independent individuals...?

Posted by: Jadehawk | June 3, 2009 3:33 AM

Robin,
The fact that the court found it was relevant to the school doesn't preclude me from arguing (here, it would in court) that since it, in fact and in plain English, happened outside of school. I say this because the activity in question did not take place within the school or on property owned by the school. I don't dispute your assertion that it was held to be within the school's legitimate jurisdiction, I dispute the holding.

You say that the speech was "treated by the Court, on the authorities, as 'on-campus'." It was not. That phrase does not appear in the decision except as part of the disjunct "on- or off-campus". (That this by itself constitutes a dishonesty on par with blurring a distinction between cancellation and indefinite postponement is an issue I will leave aside.) Please read the discussion at page 13 et seq. where the court discusses the school's argument that "in Wisniewski, we implicitly affirmed that schools may regulate off-campus offensive speech of the sort in which Avery engaged, so long as it is likely to come to the attention of school authorities" and then engages in a lengthy discussion of why it found that the activity having been "created off-campus" could nevertheless be cause for school discipline.

The discussion you reference on pages 16 and 17 is of the "diver[sion]" related to the calls and emails. I see where the court found that the disputed activity posed a "risk of" further disruption pertaining thereto, and I agree that that is the correct standard. I do not see where they found that such a disruption actually occurred. They seem to have avoided reaching that question.

Again, it is my opinion that the call and email activity is protected by the free speech clause, and that inciting people to call and email is protected by the petition clause. I fail to see why these calls and emails couldn't simply be ignored by the administrators, and instead led them to "miss or be late to school-related activities" or to call students away from such activities to "manage the growing dispute."

I really and truly consider that referring to government officials as "douchebags" while commenting on decisions of theirs with which you disagree is not serious, and that inciting people to "piss off" government officials with calls and emails is the core purpose of the petition clause.

I also think that "anddd so basically we aren’t going to have it at all, but in the slightest chance we do it is going to be after the talent show on may 18th" is an inartful summary of an indefinite postponement, but that its "dishonesty" alone is so minor, semantic, and prognostic that getting bent out of shape about how dishonest it is is more than a little bit ridiculous. It is no more dishonest than describing that sentence as "claim[ing] on her blog, flat out, that it had been [canceled]." I take "flat out" to mean "without caveats," and there is clearly a caveat there.

Seriously, there are much much stronger arguments as to why Doninger's actions should be punished than their "dishonesty."

Posted by: Douglas McClean | June 3, 2009 9:04 AM

@Douglas #20:

No time for a long comment now - but please reread the decision. On the "on/off campus" issue the Court relied not on Wisniewski but on Tinker; that is, they said not that it it was "off-campus" but still amenable to discipline, but that it was properly treated as "on-campus". On disruption, they point out that Tinker doesn't require actual disruption. It's right there in the discussion. Read it. If still necessary, I'll quote it when I get a little more time.

Posted by: Robin Levett | June 3, 2009 10:34 AM

@Douglas #23:

I take it that you have abandoned the argument on "disruption"?

As to "on/off campus", p14 ll13-16 is the finding that the "off-campus" posting was expressly designed to (and did - see the following lines) come onto the campus. They refused (p13 ll16-21)to accept the broad reading of Wisniewski that the school argued which would have allowed sanctions for off-campus speech (or the relevant character) which is simply likely to come to the attention of the administration.

I have to say that I object to the misleading characterisation of the women involved as "government officials". They are more than that - they are (certainly Niehoff is) teachers who are in loco parentis. They are expressly required to teach good behaviour, including standards of civility. It is absurd to suggest that abusive language directed at them is a personal thing not to be dealt with by disciplinary procedures. The nature of the actual disciplinary measures taken is not a constitutional issue, as the Court was at pains to point out.

By the way, it is also absurd to suggest that government officials generally are not entitled to protection against abuse directed at them as a result of their official actions. The desk-clerk at the IRS (say) is not your personal (verbal) punchbag, and you have no right to treat him/her as such. The result of no protection is poorer quality officials.

Posted by: Robin Levett | June 4, 2009 8:36 AM

Douglas,

Any consequences teachers or administrators could implement would have First Amendment implications, even the scenario you describe. In that case, it would just be less obvious that there had been consequences (especially to anyone other than Ms. Doninger). And that is why what you describe would be a completely ineffective teaching moment.

As a new teacher, I was given the advice to always try to have consequences follow as closely after the undesired behavior as possible. (And the same with praise for desired behavior, for that matter.) My experience since then has proven to me that it was good advice. Teenagers brains are still developing. They don't have the full ability that we do to recognize and evaluate the consequences of their actions, particularly consequences far in the future.

Also, for it to be a teachable moment for other students, those consequences need to be visible to those other students, and they need to see that those consequences are connected to the bad behavior. Refusal to write recommendations is not something other students would see. I also think that ostracism and interference are unprofessional ways of dealing with it. Students that display rudeness or insubordination with me might (visibly) lose the chance to get on my 'good side', but I would never behave unprofessionally with a student in my class, regardless of past bad behavior.

Posted by: JasonTD | June 4, 2009 9:43 PM

Of course, another option is to just ignore the whole situation. It will blow over, and metaphorical "wars" can be won without winning every "battle."

Posted by: Douglas McClean | June 4, 2009 11:01 PM

We are going in circles, but again, there was no finding that I can see of an actual disruption. They did find that "Avery’s conduct posed a substantial risk that LMHS administrators and teachers would be further diverted from their core educational
responsibilities by the need to dissipate misguided anger or confusion over Jamfest’s purported cancellation." (p. 17) Note the careful use of different language. There was no "material[] [or] substantial[] disrupt[ion] [of] the work [or] discipline of the school," nor was there a finding of same. The "further diver[sion]" finding you want to focus on simply isn't the same.

On in loco parentis: I understand it. However, here, the parents are perfectly able to act in loco themselves, since the behavior in question didn't occur at school.

The IRS analogy was miles off-base to begin with, I see that you have walked back from it, no need to pick it to death further.

There is a huge, huge difference between abusive language directed at someone and abusive language about someone, for just one example see Chaplinsky.

There was just no significant need for the school to act here, much as you try to slice it. Given the petition nature of the speech acts at issue, I think there is ample reason to presume them valid. Given that they occured outside school, I think there is further reason to err on the side of the student's (and parent's) rights. The first amendment isn't going to mean a damn thing if everytime someone says something uppity we start looking for nitpicky reasons why it is ok for the government to punish them. If NSPA v. Skokie was OK, surely we don't need to get all bent out of shape by the word "douchebag" appearing on the internet and a a few phone calls.

Looking at the big picture for a minute, authoritarian followers are perhaps the single biggest threat to the American experiment. Look around, there are an awful lot of them, and political efforts to manipulate them have been awfully successful over the last several decades at eroding crucial institutions of government and society. I would urge school administrators to take an extremely broad view of student's rights, take "material and substantial disruption" much more seriously as a standard. Heck, "throw a game" once in a while to teach your students that organizing can be effective and that authority figures aren't always right and don't always win. There are big things at stake.

Posted by: Douglas McClean | June 5, 2009 7:51 PM

Pg. 16, ll 17-18 says:
"The question is not whether there has been actual disruption, but whether school officials “might reasonably portend disruption” from the student expression at issue."

The phrase "further disruption" appears nowhere in the decision, much as you seem to wish that it did. Words matter, and as I've been saying, diverting the administrators for a morning to answer some phone calls (the topic of pg 16, ll3-4) simply isn't the "material and substantial disruption of the work or discipline of the school" that Tinker would require. The court used the word "disruption" 15 times, and the word "diverted" only once. If they had meant to say "disrupted" in that 16th instance, I feel certain they would have done so.

My point in referencing Chaplinsky was that the Chaplinsky court distinguished, as everyone I know does, between abusive words directed at someone and abusive words merely about someone. In fact, even the NH legislature, in drafting the law at issue in Chaplinsky, recognized this and prohibited only the former.

Look, here's what it boils down to, the blog posting at issue did 2 things:
a) It used abusively language to refer to school officials
b) It called for a campaign of calls

Had (b) appeared without (a), it would clearly be protected as an exercise of the first amendment's speech and petition clauses, no?

But all of the "risk of disruption" you address refers to consequents of (b).

So the real question, sweeping aside all the B.S. of constructing "substantial risk" of "material and substantial disruption .." in ludicrously broad ways, is an effort to justify punishing (a) when it is conducted outside school.

Had (a) appeared alone, and caused no disruption (there is nothing in the record to support that it had no such effect), would you support punishing it? I wouldn't. It's the parents' job, and it is petty.

I just don't see a reason to weaken the protection that should surround (b) here just because we think that Doninger is an annoying little jerk for having needlessly written (a), which had it appeared alone we would have extremely thin or no justification for addressing with discipline.

Posted by: Douglas McClean | June 6, 2009 1:25 PM

You're right about "disrupted further." I did a search for "further" to make sure I wouldn't miss anything, but I must have scanned past that one in the results. I was thrown off by ll7-8 as opposed to l17-18. Mea culpa.

You ask if I believe "that 'I was talking about you, not to you' when referring to language designed to be overheard by its object, is a valid excuse?" I certainly believe that "I was writing about you, not talking to you" is a big distinction. I further believe that a fighting words ban aimed at internet discourse would violate the first amendment. I further believe that there is nothing in evidence to suggest that (b) brought (a) "onto campus" in any way other than causing Niehoff/Schwartz to have occasion to read it. I further believe that this is certainly not good enough; they could have and should have dealt with being personally insulted in their personal capacities.

I'm sorry that the petition was insufficiently "pure" for your tastes. Does that mean that "douchebag" is really the only thing at issue for you? If so, how did "douchebag" cause any disruption of any kind? Was not all the disruption associated with the calls, and hence with the petition?

What purity requirements would you like to implicitly read into the first amendment? Would they apply to adults as well as students? I see every reason to read the petition clause as broadly as practical, and it certainly was a practical option for the school to do nothing here (as evidenced, in fact, by the delayed and relatively minor nature of what they did do).

Posted by: Douglas McClean | June 6, 2009 10:20 PM

Robin, I've read everything you've written about in loco parentis, I simply find it unpersuasive in the extreme as applied to this set of facts about writing on the internet outside of school.

I'm not sure the court thinks that b) brought a) onto campus. They may, but on the whole, they don't seem very concerned at all with a), mentioning it twice and concluding that it was "hardly conducive to cooperative conflict resolution." (p 15, ll 11-13) They seem much more concerned with spinning webs of ways in which b) could plausibly be seen as risking a disruption.

Your position seems to justify, inter alia:

* Punishing someone who posts "These administrators at the school are supporting the war by inviting all these recruiters, and they won't listen. We should just keep calling and pissing them off until they do." Because it isn't a "pure" enough petition, it is simply a call for disruption.

* Punishing someone who posts "Man, Mr. Joe Principal is a real jerk. He just won't listen sometimes." Because it uses mean language on the internet, and they have a "duty" to act where the parents won't (or even where the parents have, but in their judgment insufficiently) to discipline it even though it occurs outside of school.

Again, could you please state clearly the purity requirements on petitions that you would like to be the standard? Given that any successful encouragement for others to write/call/email/speak to officials will necessarily divert those officials from their normally scheduled business to deal with the letters/calls/emails/meetings, it seems that that can't be the standard. How mean does a mean name have to be before it justifies punishment? "Idiot"? "Moron"? "Jerk"? "Bureaucrat" ;)? How about a mean adjective? "Slow"? "Stupid"? "Misguided"? "Uncaring"?

The fact that the school acted in a minor and delayed fashion shows that no action was necessary, even in their judgment, to forestall a "material and substantial disruption."

Do you really want to say that Doninger's post is not even "plausibly" a petition? Please.

"... [much discussed petty insult] ... here is an email that we sent to a ton of people and asked them to forward to everyone in their address book to help get support for jamfest. basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and emails and such. we have so much support and we really appriciate it. however, she got pissed off and decided to just cancel the whole thing all together. anddd so basically we aren’t going to have it at all, but in the slightest chance we do it is going to be after the talent show on may 18th. andd..here (elipsis in original) is the letter we sent out to parents. ... And here is a letter my mom sent to Paula [Schwartz] and cc’d Karissa [Niehoff] to get an idea of what to write if you want to write something or call her to piss her off more. im down."

For something that is not even "plausibly" a petition, it sure looks a lot like every political fundraising/support-requesting email form letter I've ever received. "Here is a letter ... to get an idea of what to write"? Please.

If that's not "plausibly" a petition, could you please enlighten me as to what would look like? I'd really like to know.

Posted by: Douglas McClean | June 7, 2009 12:24 PM

Jason,
Mere reasonableness of an analogous action taken by a private actor can't be grounds for limiting first amendment protections.

For example, it would be perfectly reasonable for me to kick neo-nazi demonstrators off my lawn. It does not follow that the government may take an analogous action.

I also disagree with your characterization in (4) "The student also encourages friends to contact this school official in order to annoy him/her." It seems clear to me from the blog posting which forms the context of the "to piss her off more" pull-quote that the purpose was to "annoy him/her into changing/reconsidering the decision in (2)" which is a different can of worms, especially since "annoying" government officials into action is the modus operandi of a huge amount of political speech and protecting exactly that is explicitly the objective of the first amendment's petition clause.

The "line" in question is not, therefore, whether "the school [is] justified in thinking that the student's actions crossed a line that warrants some sort of discipline." They may well be so justified, but may be precluded from taking disciplinary action nevertheless. The issue in my mind, quouting the Tinker court is whether the disciplinary action "is necessary to avoid material and substantial interference with schoolwork or discipline." (393 US 503 at 511)

Again, I see nothing in the record showing why this action was necessary. In fact, given the minor and delayed nature of the discipline actually issued, I see evidence that even the school didn't think that discipline was necessary to avoid a "material and substantial" disruption. It certainly might have been reasonable for a private school administrator in a similar position to take similar action--it certainly would have been constitutional for them as private actors to do so--but it was not necessary in any way commensurate with the level of the first amendment issues at stake.

I believe in reading the first amendment broadly. I believe that we should be looking for ways to comply with it, and only parsing to make exceptions when there is a truly compelling reason to do so; I see nothing approaching such a reason here.

Posted by: Douglas McClean | June 9, 2009 8:07 PM

Teaching students "where the appropriate boundaries are when dealing with authority" is exactly my concern. This action by the school teaches students not to offend the sensibilities of officials, or else petty vengeance will be exacted from them by the rulers of their local fiefdom. It teaches them that, in the words of the great philosopher Mellencamp, "when I fight authortity, authority always wins." It teaches them not to bother fighting city hall. It also happens to teach all of the other students apart from Doninger that it is OK for someone to be excluded from an election because the powers that be don't approve of their candidacy.

The essentially vindictive nature of the discipline here is amply evidenced by its delayed and minor (silly?) nature; I don't blame the officials labeled "douchebags" for being upset, I do blame them for using their official authority to settle a personal score. This whole thing could have easily been ignored. Merely allowing someone to criticize the principal on the internet doesn't "undermine their ability to maintain discipline" in any way that I am prepared to countenance as grounds for an exception to the first amendment, and all of the impact on the school mentioned in the decision is direct fallout of the entirely legitimate, and clearly protected petition aspects of the blog post.

What of the other activity the extremely deferential approach to the first amendment you propose would allow? (How) would you distinguish if the school had punished someone for posting Doninger's exact posting, leading to exactly the same series of calls and emails, but had called the school officials "moronic," "stupid," or even "misguided" instead of "douchebags"; and if you would distinguish, what does that say about how its "not up to you and me"? It seems to me that if you wouldn't distinguish, then the petition clause only protects unsuccessful "shouting in the wilderness" petitions that don't lead to any calls or emails in support that distract school officials from even one morning meeting. It further seems that if you would distinguish, that your distinction must hinge on an extremely thin notion of risk that an internet post calling someone a name will lead to a disruptive episode of poor discipline in the school itself; further that if your distinction does hinge on that point, then it must be a risk-based analysis inappropriate to an after-the-fact (as opposed to prior restraint) disciplinary action.

Posted by: Douglas McClean | June 12, 2009 8:58 PM

If, as you say, it all boils down to "douchebag" and "moron" would have been enough to suffice, then the "disruption" argument goes out the window (the minimal disruption that occurred was entirely related to the legitimate aspects of the petition) and you need to find something else which justifies reaching so far outside of the school. That's the part that you seem very quick to sidestep when you focus on "what [the administrators are employed to do." They are employed to maintain order and an educational environment in the school. They are not employed to maintain civility in homes and on the internet at large, which would certainly be a losing battle. It could have been ignored.

You write, in construction of a straw man: "When are students supposed to learn that they can't call their bosses names in public without risking their jobs if teachers and principals can't discipline them for calling them names?" Of course no one is arguing that; certainly I am not arguing that. Teachers and principals can discipline students for calling them names. Teachers and principals cannot discipline students for calling them names outside of the school, especially when that name-calling has no disruptive effect inside of the school.

I agree with the entire paragraph that begins "Personally, I find name-calling to be a sign of weakness." Unfortunately, it is irrelevant. The weak, angry, hateful, illogical, and disagreeable have first amendment rights coextensive with yours and mine.

If "morons" really wouldn't change the outcome, then am I correct in reading your argument about the centrality of the pedagogical purpose of the disqualification as implying that it wasn't really a punishment for "douchebag" and should have/would have happened anyway because Doninger lacked the proper disposition to be a candidate for the student government? If so, then what became of the need to discipline her for calling the administrators "douchebags"? Shouldn't some additional discipline have been warranted? I suspect it is going to take some fancy footwork to play this one both ways.

We should be reading the first amendment to provide as broad a protection for as much activity as is practical, not to provide as narrow a protection as is commensurate with our desire to get back at annoying punks but still makes us feel good about ourselves because we 'respect their rights'.

Take a step back up the thread and re-read the part where Robin claimed that Doninger's blog post wasn't even "plausibly" a petition (#35). Now, despite the long focus on offensive language it seems that even the lack of that would not protect that petition. Maybe we should go at this from another angle: what petition would you protect, if any? Further, would the facts of this case legally justify suspension/expulsion? Would the hypothetical "moron" case legally justify suspension/expulsion?

Of less import, you said: "But a school can't let just any popular dork who wants attention run for student government, or it would become a complete joke." I agree, but that message seems not to have reached anyone in charge of any student government election I recall witnessing.

Posted by: Douglas McClean | June 14, 2009 7:11 PM