Federal Appeals Court Affirms Student Suspension from Class Office for Negative Blog Post

Avery Doninger was disqualified by officials at Lewis
Mills High School ("LMHS"), in Burlington, Connecticut,
from running for senior class secretary after posting on her
weblog a "vulgar and misleading message about the supposed
cancellation" of a school event called "Jamfest".
Doninger and her mother sued to force LMHS to allow her
to run for secretary, which was denied by a U.S. district
court (See School Law Notes, November 21, 2007). They
appealed the decision, but the Second Circuit Court of
Appeals held that Doninger's constitutional rights were not
violated when LMHS officials decided to punish her for her
speech even though it was posted off-campus. Doninger v
Niehoff, __ F3d __ (CA 2, 2008).

As discussed in depth previously in School Law Notes,
Doninger, who was then the junior class secretary, was
upset when the LMHS administration planned to postpone
a student-sponsored event called "Jamfest," which had been
postponed twice previously. In response, Doninger posted
a negative and "vulgar" rant on her blog urging people to
call and email the district superintendent and LMHS
principal. The principal came upon the blog and refused to
allow Doninger to run for, or be elected to, the office of
senior class secretary as a result of the post. Doninger's
mother then sued the school district to force the district to
allow her daughter to run for the student council position.
The U.S. District Court of Connecticut, however, declined
to grant such an injunctive order.

In upholding the school district's decision, the court
stated that "a student may be disciplined for expressive
conduct, even conduct occurring off school grounds, when
this conduct 'would foreseeably create a risk of substantial
disruption within the school environment,' at least when it
was similarly foreseeable that the off-campus expression
might also reach campus." In determining that the school
ldistrict could discipline the student, the court considered two
main points. First, school districts may "prohibit the use of
vulgar and offensive terms in public discourse." Bethel Sch
Dist No 403 v Fraser, 478 US 675, 683 (1986). Second,
school districts may prohibit student expression that will
"materially and substantially disrupt the work and discipline
of the school." Tinker v Des Moines Indep Cmty Sch Dist,
393 US 503, 513 (1969).

The court found that had Doninger made these same
statements on a leaflet and passed it out on campus it could
be prohibited as plainly offensive speech under Fraser.
Moreover, the off-campus speech was intended to come on
campus. The nature of the blog and the fact that school had
been disrupted through multiple meetings during school
hours and numerous telephone calls to the central office
showed that the blog created a foreseeable risk of substantial
disruption within the school in violation of Tinker.
The court ruled two other factors justified the school
district's decision. First, not only was the posting vulgar,
but it also was misleading; namely, Jamfest was not "canceled"
as the blog stated. This misinformation encouraged
disruption on campus. Second, Doninger was not suspended
from school but was merely prohibited from an extracurricular
activity, which is a privilege. The punishment here did
not intrude upon Doninger's education and did not violate
her First Amendment rights.

The Doninger case is not binding in Michigan; however,
the case relied heavily on precedent binding in this
case. Michigan state and federal courts may, therefore, find
this case persuasive.