Decius wrote:
You haven't posted in a while... :)

True... I have been lurking on this site for a while and have been meaning to start posting.

I am going to argue some of these counterpoints, and concede on at least one. After doing more research, it is pretty clear that the administration acted in a particularly unskillful manner bordering on total incompetence. I want to make it clear that I don't endorse their actions as particularly effective from an educational standpoint. However, that is for the school board to look at - not the federal court.

While I think that the right to disagree on policy is an important and extremely serious constitutional right, I also believe that in order for a school to create an environment of intellectual curiosity and safe discussion it is important that students, teachers, administrators, and all members of the school community refrain from using hurtful and blatantly disrespectful language to describe other members of the community. It is the role of the teacher or administrator to know better than to engage in such community directed speech, and is actually a clear breach of contract if they do. It is the role of the student learn to refrain from such ad hominem attacks, and the responsibility to facilitate this growth falls on the teachers and administrators. This applies to interactions inside and outside of school, as verbal abuse made off campus may have the same degrading effects as verbal abuse made on campus.

In a voluntary classroom this principle may be readily applied. A student has a First Amendment right to engage in hurtful and disrespectful language against their chaperones outside of school, but this constitutes a breach of the agreement they made, and steps should be made to restore trust before the offending student may continue to work in a voluntary setting.

I am not sure of a good answer for the mandatory classroom. The student has agreed to nothing, and so may engage in hurtful language. However, in fairness to the other members of the classroom - it would be reasonable to remove a student who repeatedly attacks the teacher or other students in a manner that materially degrades the quality of the environment. Care would need to be taken to alert the student to their constitutional right to engage in such behavior, but also of the right of others not to work in such an environment as well as the probable interpersonal and professional consequences of making such publications. Alternative materials, such as videos and books, would need to be given to the student.

1. My purpose here is not to defend Doninger's right to serve on the student council but rather to express opposition to the specific reasoning employed in this decision. Although I think its unlikely, it is possible that there is a legitimate path that gets you to excluding Doninger from participation, but path followed here is not legitimate. My principal point of concern with this decision is the notion that Doninger's blog post was not protected by the First Amendment.

I am also concerned by the overly sensitive test of disruption. In my mind, disruption warranting sanction is on the order of yelling fire in a theater. However, this is not by far the first decision of its type, and fairly 'conservative' in that it defaults to standard case law. This makes sense for a preliminary injunction where you are trying to judge the likelihood of success.

Apparently there are three supreme court cases that are always considered.

Kuhlmeier - Most restricted speech. Applies only to 'school sponsored' speech such as an official newspaper or anything endorsed by the school.

Fraser - (An overly broad decision in my reckoning) Anything stated on school ground or brought onto school ground by the author that is 'vulgar or lewd'. Basically anything sexual.

Tinker - Anything not covered under Fraser or Kuhlmeier is protected provided it does not 'disrupt school activities' or 'affect the rights' of other students. The original case ruled that Vietnam protestors could wear black arm bands to school. Tinker has been often applied to off campus speech, with the idea of disruption the standard for judgment. In 1976 Fenton v. Stear the court upheld the suspension of a student who called a teacher a prick in a parking lot with other students around. In Beussink v. Woodland R-IV School District a student posted vulgar comments about the principal on his website but could not be disciplined as the site did not cause a 'substantial disruption'. In J.S. v. Bethlehem Area School District (1998) a student joked about reasons to kill his teacher, and as the teacher took medical leave as a result, the court ruled that there was a substantial disruption and so ruled in favor of the school suspending the student.

From what I read, the Tinker argument is hard for schools to implement, and they usually need to document the disruption quite well. As Doninger's blog posting was (allegedly) inaccurate and urged readers to 'piss them off more', the school actually has some ammunition as far as showing a disruption.

I don't believe that the preliminary injunction opinion should not be read to state that her speech is not protected, but that by the Tinker standard, the school has a significant chance of prevailing.

2. I totally reject the idea that it is a waste of time for the administration of the school to have to listen to and respond to comments and criticism from students and parents who disagree with their decisions. I also totally reject the idea that Doninger's purpose was to waste the administration's time. As I previously argued, the expression of views by the general public toward public officials is a fundamental characteristic of political discourse in a free society. The government must make room for it and, more importantly, must respect it, as this is how democratic institutions work. The alternative here - that the people should not waste public officials precious time with their petty, misinformed, and insignificant opinions, is the hallmark of totalitarianism.

After further consideration, I agree that you are correct here and my original assertion is incorrect. While I think that Doninger's method of confronting the administration is hopelessly ineffective, she is most likely acting in the hope that they will eventually be forced to change their decision. Further, I did a little research and have found that a principal has been ruled to be a public official, so it is their duty to hear out the public concern.

3. The court here strongly implies that although these sanctions have no constitutional implications, there might be other kinds of sanctions not considered here that do have constitutional implications. In your response you turn this implication into a counterpoint, arguing that things would be different if the student was suspended. This view must be considered in light of the fact that court is arguing that the blog post was not subject to First Amendment protection due to the fact that the operation of the school was potentially disrupted. I'll admit that my knowledge is not comprehensive, but as far as I know, what the court implies here is a novel view of the First Amendment. AFAIK speech either is or is not protected. There is no gray area here. If it is protected, it cannot be sanctioned at all. If it is not protected, it can be banned outright.

You are right, the speech is either protected or it is not. The purpose of the ruling is to determine if Doninger has a substantial chance of success, so it makes sense that they would rule a) that there is a substantial risk of disruption negating protection of her speech, and b) she has no protected property interest anyway, so it doesn't matter if the speech is protected. Therefore she is likely to fail on at least one of (a) or (b), and the court will not force the school to make her secretary.

As regards (b), extracurriculars are not protected property interests. (see below)

4. The school is a public institution and not a private club. Even though extracurricular functions are voluntary, the administration of the school cannot bar students from participating for any reason they desire. For example, the Boy Scouts of America bans homosexuals and atheists from participating. They can do this because they are a private institution. A school cannot similarly ban homosexuals or atheists from participating in the student government. The school cannot refuse to endorse student government candidates based on the legitimate exercise of their First Amendment rights. For example, if Doninger had called George Bush a "douchebag" on her blog in the context of complaining about federal government policy, the school clearly could not refuse her as a candidate based on the theory that this blog post reflected "poor citizenship." To do so would cast a pale over any student political expression, and this pale would be case by a public official operating with tax payer dollars and lawful authority. This is clearly barred by the First Amendment.

You are correct, both legally and morally, that schools cannot bar students from participating in extracurriculars based on things like atheism and homosexuality. Beyond that, it looks as if the case law is well against your argument:

From the original district court ruling:

the Supreme Court and other courts have been willing to accord great
discretion to school officials in deciding whether students are eligible to participate in extracurricular
activities. Indeed, as one treatise has noted, "an overwhelming majority of both federal and state
courts have held that participation in extracurricular activities . . . is a privilege, not a right. In fact,
one of the longest string cites one is likely to encounter this side of a law review article supports the
proposition that extracurricular activity is not a constitutionally protected property interest." Charles
J. Russo & Ralph D. Mawdsley, Education Law § 4.05[1], at 4-20 to 4-21 (internal citations and
quotation marks omitted);

http://www.citmedialaw.org/sites/citmedialaw.org/files/2007-08-31-D.Conn._Order_Denying_Motion_for_Injunctive_Relief.pdf

5. Once you eliminate disruption of the functioning of the school as a legitimate concern, (which I did in point 2) the only difference between the present circumstances and the circumstances imagined at the end of point 4 is that here the public officials being called "douchebags" are the very same public officials whose sponsorship is required for student council. I am not convinced that this difference is material. In fact, the risk of retaliation by government officials to expressions of dissenting opinion is, of course, greatest when we are talking about the same officials whose decisions are being criticized. The Lowery v. Euverard case the court (and you) quoted, which reached a similar conclusion as Doninger, is controversial and was not unanimously decided. The dissent in that case presents numerous arguments which I think also apply to Doninger. The facts in both cases are similar.

The argument for the material difference between calling Bush a douchebag and calling a principal a douchebag is that a student council officer is expected to work closely with principal in order to plan events and bring forth student ideas and opinions - i.e. the principal is a member of an educational community. Similarly in Euverard, the coach is expected to work closely with the students, guiding them in an aggressive contact sport. In the case of football, it can be argued that a lack of respect for the authority of a coach can actually be dangerous given that the activity is making large teenagers collide at high speed. If the players express in writing that they 'Hate the coach and don't want to play for him' the coach may have a legitimate concern for his ability to control the players in a confrontational environment - much less win games.

In both cases I think that the extracurricular activity aspect is meaningful. This is a voluntary activity, and it is reasonable to expect that all parties treat each other with respect both in and out of school - as a hypothetical: to play in jazz band you are expected to treat the jazz band instructor with common courtesy and making web pages comparing him to Hitler and ridiculing his physical appearance would constitute a breach of that relationship. (The same goes for the instructor!)

(I will note that there was the complaint in Euverard that the coach failed this standard and spoke abusively to the students - but this is a matter for criminal court.)

6. Students have a First Amendment right to speak out about about government policies that they disagree with. This includes the policies of their schools. There are appropriate and inappropriate ways for school officials to respond to those expressions. The answer to bad speech is usually more speech - explaining the administration's position in light of careful consideration of student counterpoints. What is going on here, through a collection of different cases such as Doninger and Lowery, is the creation of a new policy which allows school officials to retaliate against students who express views that they don't like by systematically denying them access to certain "privileges." It is precisely this sort of retaliation that the First Amendment is intended to prohibit.

I agree that students have such a right, and especially enjoy your assertion that the answer to bad speech is usually more speech, as this is by far the most effective teaching practice I know. I am also aware that there is a danger that extracurriculars could be used as a way around first amendment protection. However, in both Doninger and Lowery, the view in question is hatred towards or 'douchebagginess' of a member of the school community, which could deteriorate a climate of trust and mutual respect.

I think that the 2nd circuit court made a surprisingly good decision in Guiles v. Marineau where they asserted the right of a student to impugn the character of George Bush (not a member of the school community) on a T-Shirt in school even through it depicted drug use. It would be interesting to see a case of an extracurricular activity involving such an expression, and I would hope that the student would prevail.

Although not relevant, I think that it is interesting to note (documented in the district court opinion linked above) that before lodging a 1st Amendment complaint, Doninger's mother agreed with the administration that Doninger's actions were unacceptable but that her punishment should be to be removed from jamfest for two years - not the secretary position as she felt this was too harsh. So the entire dispute and case comes initially not from the mother's wish for Doninger's right to call the principal a douchebag to be upheld, but from the mother's disagreement with the manner that the principal did her job.

RE: Why the Doninger decision is dangerous and Sotomayor must not be confirmed.