Second Circuit decides school officials entitled to qualified immunity from student blogger’s First Amendment claims
Doninger v. Niehoff, Nos. 09-1452/09-1601/09-2261 (2d Cir. Apr. 25, 2011)
Abstract: A three-judge panel of the U.S. Court of Appeals for the Second Circuit (NY, VT, CT) has issued a ruling in a much-watched case addressing the First Amendment rights of public school students. In this latest ruling, the panel decided that school officials who refused to allow a student to run for Senior Class Secretary following a vulgar posting on her off-campus blog, and later refused to allow her to wear a T-shirt in school commenting on controversy, are entitled to qualified immunity from both First Amendment claims. The panel concluded that there is no bright line rule constituting “clearly established” law prohibiting officials from regulating student speech that occurs off-campus. It also concluded, based on the facts most favorable to the student, that the law is not clearly established regarding whether officials may ban students from wearing T-shirts at school under Tinker’s substantial disruption standard. Without clearly established law, and with reasonable conduct on the part of the school officials, the panel determined the officials were entitled to immunity.
Facts/Issues: The case stemmed from a mass e-mail and blog entry by Avery Doninger, a student council member and junior class secretary at Lewis Mills High School (LMHS), protesting the rescheduling of a student council event. School officials were inundated with e-mail messages and phone calls generated from her e-mail, and her subsequent blog entry reported that the event had been cancelled altogether, referred to school personnel as “douchebags,” and encouraged readers to continue to contact the superintendent to “piss her off more.” When school officials later became aware of this blog posting, the principal barred Avery from running for senior class secretary. There also was an incident involving school restrictions on the wearing of “Team Avery” shirts by her supporters at the ensuing student election assembly.
Doninger sued the superintendent and the principal in state court, alleging violation of her free speech and equal protection rights under the federal constitution, as well as violations of the state constitution. She sought a preliminary injunction to order school officials either to hold a new election allowing her to run for class secretary or to install her as an additional senior class secretary. The suit was removed to U.S. district court, which denied Doninger’s motion for the injunction, finding that she had not established the required substantial likelihood of prevailing on the merits of her case. The Second Circuit, relying the “substantial disruption” standard established in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), affirmed this decision.
On remand to the district court, both parties filed motions for summary judgment. The district court denied Doninger’s motion and granted the defendants’ motion in part. The court denied the defendants summary judgment as to Avery’s claim relating to the T-shirt incident, finding that there were unresolved factual questions that made summary judgment inappropriate and that, assuming Doninger’s allegations were true, the right to wear the shirts was so clearly established under Tinker that the defendants would not be entitled to qualified immunity from this claim.
As to the claim relating to the blog, the district court first rejected Doninger’s argument that new evidence cast doubt on whether her blog entry “actually caused disruption.” However, the court found that Doninger’s second argument—that she was not disciplined until weeks after the incident had been resolved and not because of potential disruption but instead because of her offensive remarks—prevented the court from granting the summary judgment based on the Second Circuit’s reliance on Tinker. Instead, the defendants obtained summary judgment on the blog claim because they were entitled to qualified immunity.
Ruling/Rationale: The panel affirmed in part and reversed in part the district court’s decision, granting the school officials immunity as to both First Amendment claims. It affirmed that part of the decision granting the school officials qualified immunity from Doninger’s claim that denying her the right to run for Senior Class Secretary based on her blog posting violated her free speech rights. The panel reversed the lower court’s holding that those same officials were not entitled to qualified immunity from Doninger’s claim that the ban on wearing the t-shirts at school violated her free speech rights.
The panel rejected Doninger’s argument that based on the Second Circuit’s ruling in Thomas v. Board of Education, 607 F.2d 1043 (2d Cir. 1979), “it was clearly established at the time [of the events in this case] that off campus speech could not be the subject of school discipline.” It pointed out that the U.S. Supreme Court has yet to address the issue and, further, the speech/expression at issue in Thomas had only a de minimis connection to the school. As a result, the panel said, “It is therefore not the case that, in this Circuit, Thomas clearly established that off-campus speech-related conduct may never be the basis for discipline by school officials.”
On the contrary, the panel noted that in Wisniewski v. Board of Education, 494 F.3d 34 (2d Cir. 2007), the Second Circuit held that school officials were justified under the Tinker standard in disciplining a student for off-campus online expression that “pose[d] a reasonably foreseeable risk that [it] would come to the attention of school authorities and . . . ‘materially and substantially disrupt the work and discipline of the school.’” It rejected Doninger’s contention that her blog posting did not satisfy that standard as spelled out in Wisniewski . The panel concluded, based on facts not in dispute, that it was reasonably foreseeable that her post would reach school property and have a disruptive effect.
The panel also found unpersuasive Doninger’s argument that school officials’ disciplinary action was unjustified under Tinker because it was motivated by an impermissible motive, namely that they found the posting offensive. The officials’ motive is irrelevant to a Tinker analysis, said the panel. In addition, it suggested that there may have been not any First Amendment speech implicated in the present case because Doninger’s speech was not restricted and she was free to continue criticizing the school administration, just no longer eligible for the privilege of serving as a class officer.
The panel cited Lowery v. Euverard, 497 F.3d 584 (6th Cir. 2007), a Sixth Circuit decision in which students were removed from the football team after criticizing the coach. That court, in a case the panel characterized as being similar, ”conduct[ed] an analysis under Tinker, conclud[ing] that the school did not violate the players’ First Amendment rights by deeming them unfit to serve on the football team so long as they were actively working to undermine the coach.” The panel found the Sixth Circuit’s reasoning buttressed its own, noting that in “determining that the students’ First Amendment rights had not been violated, the Sixth Circuit noted that Plaintiffs’ regular education has not been impeded, and, significantly, they are free to continue their campaign to have [the coach] fired, but were “… not free to … continue to play football for him while actively working to undermine his authority.”
Turning to the T-shirt, while the panel agreed with the district court that school officials had forecast the disruptive impact of the shirt’s message erroneously, nonetheless the officials error was reasonable and, thus, they were entitled to qualified immunity. It concluded, given the significant factual difference between Tinker and the present case, that if the school officials here ” … thought that a less demanding standard of potential disruption might apply, [they] could not be said to have an unreasonable understanding of what the law requires.” In addition, the panel concluded that even if it was “clear to a reasonable official that the Tinker standard applied in the circumstances” in the present case, the officials were “still entitled to qualified immunity if such an official could have reasonably erred in determining whether the potential for disruption at the assembly was sufficient to satisfy that standard.”
Doninger v. Niehoff, Nos. 09-1452/09-1601/09-2261 (2d Cir. Apr. 25, 2011)
[Editor's Note: A summary of the district court's opinion is available below. Because the Second Circuit panel disposed of Doninger's claims on basis of qualified immunity, it did not reach the merits of the claim regarding school officials' regulation of online speech by a student that occurs off-campus but involves school matters and personnel.
Meanwhile, in February 2010, a U.S. District Court in Florida ruled that a high school student who was suspended and removed from AP courses because she created off-campus a group on Facebook dedicated to criticizing a particular teacher, had stated valid claim for violation of her free speech rights. A summary of that opinion is available at the second link below.
Following the Florida district court's ruling, On Point reported that the school, Pembroke Pines Charter High School (PPCHS) agreed to settle the suit brought by former student Katherine Evans. Evans was suspended by PPCHS Principal Peter Bayer after she used her home computer to write, “Ms. Sarah Phelps is the worst teacher I've ever met!” in a Facebook posting. As part of the settlement, PPCHS will expunge Evans’ three-day suspension from her disciplinary record. The school has also agreed to pay Evans $1 in nominal damages and $15,000 in attorney fees. A summary of the article, with links to background on the U.S. Court of Appeals for the Third Circuit's (PA, NJ, DE, VI) en banc (all active judges participating) review of a pair of student cyber-speech cases, is available at the third link below.]