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Court Backs Discipline of Student Over Internet Speech

In a case raising novel issues about student speech rights in the Internet era, a federal appeals court has upheld the discipline of a Connecticut student who had harshly criticized school officials in her Web journal.

The closely watched case involves Avery Doninger, who was a junior at Lewis S. Mills High School in Burlington, Conn., in 2007 when she tussled with school officials over the scheduling of a band contest known as "Jamfest."

Doninger, who was a student council member and junior class secretary, went home and wrote in an entry in her public blog at the website livejournal.com that "jamfest is cancelled due to douchebags in central office" and that readers should contact the superintendent "to piss her off more."

School officials, citing disruption by the emails and Doninger's Web comments, barred her from running for senior class secretary. She wasn't suspended.

Doninger and her mother initially sought an injunction barring her discipline, but a district court and a panel of the U.S. Court of Appeals for the 2nd Circuit, in New York, which included then-Circuit Judge Sonia Sotomayor, ruled against her.

The student continued to press her claims for damages under the First Amendment's free-speech clause. She lost in 2009 in federal district court, which granted qualified immunity to the school officials who disciplined her.

In a decision on Monday, a new 2nd Circuit panel ruled unanimously that school officials were immune from Doninger's suit.

"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," Judge Debra Ann Livingston said in her April 25 opinion for the panel in Doninger v. Niehoff.

The court said 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."

The court stressed that it was stopping short of ruling whether the school discipline actually violated Doninger's free speech rights. And, "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."

But the speech at issue in Doninger's case was closely tied to school events, and the student's role as a council member and class officer was signficant in the qualified-immunity analysis, the court said.

The court noted that the U.S. Supreme Court "has yet to speak on the scope of a school's authority to regulate expression that, like [Doninger's], does not occur on school grounds or at a school-sponsored event."

On a separate issue in the suit, the 2nd Circuit court upheld school officials' immunity over barring Doninger from wearing a T-shirt related to the controversy at a school election assembly. The T-shirts said "Team Avery" on the front, in reference to Doninger, and "Support LSM Freedom of Speech" on the back, referring to the high school. Doninger and her supporters were told they could not wear the shirts into the assembly.

The federal district court had sided with Doninger on the T-shirt issue, holding that her right to wear such a shirt into the assembly was clearly established.

But the 2nd Circuit panel reversed, granting immunity to school officials who barred the T-shirts, even if they were mistaken legally.

The school principal "faced a difficult task in assessing whether the threat of disruption was severe enough to justify preventing Doninger from wearing her T-shirt into the assembly," the 2nd circuit said. A reasonable jury might find that the threat of disruption was not sufficiently substantial, the court added.

"We cannot conclude, however, that such a mistake was anything but reasonable - the very sort of mistake for which the qualified immunity doctrine exists to shield officials against unwarranted liability."

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