Last spring, Avery Doninger, junior class secretary at Lewis Mills High School in Burlington, CT was working hard to organize an annual battle of the bands at her high school. There had been complications around the venue to be used. The school had a brand new $2 million auditorium that the students wanted to have the concert in.
At a student council meeting, a few days before the scheduled concert, the students found out that the auditorium would not be available as had been planned for. There were some bureaucratic issues about who would oversee the students using the equipment in the auditorium.
Avery, along with three other students did what we as activists applaud. They reached out to the voters and taxpayers. They sent an email to the parents of as many of their friends as they could find email addresses for and asked them to contact the school.
Yet many of us know that government officials don’t always react properly to being contacted by the people they are supposed to serve, and that this can be even worse with school officials.
Avery was told by school officials that as a result of the email, the band festival would be cancelled. The response is also what you would expect from a passionate teenager. That evening at home, she wrote an entry using a few choice words in her Livejournal.
It was later when the school administration found out about the blog entry that things took a turn for the bizarre. They spoke with Avery’s mother and Avery’s mother counseled her in Avery’s use of language and ways of dealing with frustration and intransigent officials.
At this point, the school went beyond what is reasonable. They forbade Avery from running for re-election as class secretary. They confiscated T-shirts that students wore to school to support Avery. They placed false information in students’ disciplinary records about the event. When Avery won the election on write-in votes, the school discarded her votes and named the second place candidate as the winner.
When confronted about this by Avery’s mother, the remained intransigent so Avery’s mother took them to court for violation of Avery’s civil rights.
The initial motion was filed in the Connecticut courts, but lawyers for the school got it moved to the U.S. District Court in New Haven. Judge Kravitz, a Bush appointee and close friend of Justice Roberts heard the motion for preliminary relief. I blogged about these hearings in the Connecticut section of my blog, Orient Lodge. If you want more details, please stop by.
Forty-five minutes after hearing the end of testimony, Judge Kravitz issued a thirty-four-page ruling, denying Avery’s request for preliminary relief. The case is now headed to a full trial in the District Court. In addition, an appeal of Judge Kravitz’ ruling has been filed in the U.S. Second Circuit.
This sort of legal action costs money. This is where Poets, Writers, Bands and all of us come in. This coming Sunday, there will be a fundraiser in Litchfield, CT called Poets and Writers for Avery. The event will include bands from the rescheduled concert and noted writers and poets, including Wally Lamb.
I’ve posted the event on Eventful, Upcoming, MyLeftNutmeg and written about it on Orient Lodge.
It would be great to see some folks from Massachusetts come down. This should be a great event. Even if you can’t attend, please show your support in other ways. Contribute what you can. If you have a website of your own, please add this ChipIn widget. If you are on Facebook, please join Team Avery.
If you believe that we should be able to express our feelings on personal blogs at home without schools punishing us for it, if you believe that every vote should be counted, then you should stand with Team Avery.
Thanks, and I hope I see a bunch of you in Litchfield.
They can’t like cancel the battle of the bands! That’s like torture or something. Like we’re totally living in a third world country. Like, totally no way!
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Those friggin fascists! They will no way stop the rock n roll. You hear me fascists! Yo totally no way can you stop the rock n roll.
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we may end up living in a third world country.
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It is truly unfortunate that some people are getting to the point of thinking that as long as no one is being tortured, it is okay.
young people today are more progressive than older generations by, like, leaps and bounds. i’ve seen polls that show them identifying as liberal more than conservative by something like 20 points. in a country where adults as a whole self-identify as conservative about 15% more than they self-identify than liberal, that is nothing short of astounding, and it is very new in american politics (todays 40-year-olds were about as conservative as their elders during the 80’s, voting with reagan at about the same rates as everyone else). the millenial generation offers us an opportunity for genuine and long-lasting progressive realignment. so letting young people hang out to dry (or ridiculing them) when their legitimate rights are threatened is just bad politics.
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Young people have always been more
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Churchhill: If you’re not a liberal when you’re 25, you have no heart. If you’re not a conservative by the time you’re 35, you have no brain.
The polling has shown that generation coming is up is remarkably more liberal than previous ones. There’s also a tendency for people to stick to the beliefs they had in their twenties. Verily the Bush Administration has been a learning experience.
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This quotation is frequently but mistakenly attributed to Churchill. It is anyway unlikely that Churchill would subscribe to this philosophy: He was a swashbuckling soldier at 20, and a Conservative member of Parliament at 25. A couple of years later he switched to the Liberal Party (which was not liberal in the modern sense), and later went back to the Conservatives.
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The phrase originated with Francois Guisot (1787-1874): “Not to be a republican at twenty is proof of want of heart; to be one at thirty is proof of want of head.” It was revived by French Premier Georges Clemenceau (1841-1929): “Not to be a socialist at twenty is proof of want of heart; to be one at thirty is proof of want of head.”
This is what you consider a “Civil Rights” violation?
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Good grief.
Being punished for something you have said at home is a civil rights violation. If you are willing to give up the right to express your feelings online without retribution, then perhaps you should stop posting here and in other online venues.
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If you think that it is okay for people working for the government to throw away votes that they disagree with, I hope that you don’t bother to vote.
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If you think that it is okay for government employees to place false information about you in government records, I hope, for your sake, that no one ever has to do a background check on you.
….picking a side either way, I need to state that if you are under the impression that you have the right to express your feelings online without retribution, as a general rule, you are very mistaken as to what constitutes your civil rights. Obviously what we are protected from is government retribution, but as far as minors and schools are concerned the standards are considerably lower than they are for adults, and of course as an adult you can suffer all kinds of retribution for what you say at home if it is at the hands of private actors and not the government and not a single civil right will be trampled in the process. This issue is not as black and white as you have painted it.
You are correct that it is not black and white, and I’m sorry if I came across as trying to paint it that way. I had assumed that I was writing to an audience, like my normal audience, which is highly defensive of peoples right to say whatever they want, online, no matter how stupid, offensive, or whatever. Also, I’ve been writing extensively about this for a couple months now on my own blog, and I had hoped that people who were interested would follow some of the links there as well as to other blogs following the case, instead of expecting me to rehash a very complicated case here.
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There are consequences of everything that we do, and Avery received her consequences from her parents for her blog post. However, her parents are very concerned about the long reach of the school administration in punishing Avery for something Avery did at home in the evening. Many people that I know who are concerned about public education have had similar reactions.
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You are particularly correct in focusing on protection from governmental retribution particularly as it relates to students in public schools. As noted in cases like Morse, Wisniewski, Tinker and others, students rights of free speech are limited when such speech takes place on school properties, advocates illegal activity, poses a substantial disruption to education, or possible harm to students.
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The argument of Avery Doninger and her parents are that none of the current limits of students free speech apply in this case and upholding the administrations actions adds significant new limits to the rights that students have.
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Having followed this case closely, I firmly believe that this case does set danger new precedents, which is why I am working hard to get people to this issue as well as fund efforts to retain the rights of students everywhere.
….dangerous new precedent been set in light of the fact that a district court judge’s decisions carry no precedential weight and the merits of the case were not even decided…just an equitable preliminary petition was denied and that has a completely different standard that doesn’t even touch the ulimate issue of constitutionality?
I believe that when people’s rights are challenged, failing to respond may not set a precedent in terms of case law, but it does set a moral precedent. I believe we all have a responsibility to defend our constitutional rights.
…I’m not sure that there is a constitutional violation. But if the school allows any of its facilities to be used by non-curricular groups during after-school hours, denial of a right of this group to use the auditorium may be a violation of the federal equal access laws.
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The groups pushing for passage of the federal equal access laws were christian bible study groups (definitely non-curricular) after schools refused to allow them access to school facilities for after-school meetings, while the schools allowed other non-curricular groups to used school facilities. Ironically–and to conservative christians’ chagrin, the equal access laws have also been used by groups wishing to use school facilities for school gay-straight alliances for their after-school meetings, and they generally win in court.
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So, if the school in question allows non-curricular groups to make use of their facilities for their meetings, I would be surprised if the group sponsoring the “battle of the bands” couldn’t force the school to allow them to use school facilities for their activity.
The use of the school property is not part of the issue at all. The key violations include:
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Free Speech:
Being prohibited from participating in school events, such as running for class office, because of free speech exercised away from school.
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Having T-shirts confiscated because they had a message that the school did not approve of.
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Due Process:
Having the results of an election over turned because the administration did not approve of what a student said away from school.
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There are some other key due process issues in why Avery was singled out, whereas other students involved in the initial email and students that had written offensive derogatory comments were not punished, but actually recognized as outstanding members of the school community.
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There were several other aspects where Avery’s rights were denied, but I’m only a blogger who has been following this case, and I don’t have the details.
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To me the key issues are that people should not be punished for what they write on a blog from home and that if you’re going to have an election, you need to count the votes fairly.
The school isn’t bound by the Constitution to have a student council or even any student representatives…they set the rules as far as eligibility. As long as they didn’t stop her from running because of race, sexual orientation, religion etc, it’s the school’s prerogative. Also, ‘due process’ is related to court, not elections, so it’s a moot point.
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I’m also curious as to what this “false information” is. That’s ambiguous.
You are right that it’s the school’s prerogative whether or not a person can run for office, providing that prerogative doesn’t violate basic rights. Yet the right to freedom of speech at home is generally considered on the same level as the right to not be discriminated against for other reasons like race, sexual orientation or religion.
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As to the false information, you can get details on the Connecticut Section of the Orient Lodge. In specific, the principal testified under oath during the preliminary hearing that she ordered a school employee to place information in the students disciplinary record saying that she had had conversations with the students about the issues, when it was clear from her own testimony that she could not have had those discussions. She admitted, under oath the the information she had asked to be placed in the records was false.
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As to ‘due process’, I’m not a lawyer, but my understanding is that when a government agency, including a school arbitrarily treats one person differently than others in the services that it provides, it is a violation of due process. That said, I may be confusing it with another term that was used extensively in the case, which I cannot at this point remember. I believe the constitutional amendments that were referred to included the 1st, the 4th and the 14th.
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I can probably dig through my notes for more details, but I would encourage you to read some of the history, both on Orient Lodge, as well as on The Cool Justice Report. Cool Justice is written by Andy Thibault, former Freedom of Information commissioner in Connecticut and columnist for the Connecticut Law Tribune.
As far as I can tell, the only possible constitutional issues might be
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They confiscated T-shirts that students wore to school to support Avery.
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This might be analogous to the late 1960s era US Supreme Court decision in the “black armband” case–in which a school forbade students from wearing black armbands to school to protest the Vietnam war. You did not give us enough information–such as what was on the T-shirts–but this might be distinguishable on the basis that the black armbands did not involve school administration, but the T-shirts might.
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They placed false information in students’ disciplinary records about the event.
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This might actually be a due process violation, if the information was placed in the students’ disciplinary records without a hearing.
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I don’t see constitutional issues in your other points. Student offices in the school are extra-curricular activities under the control of school admininstration. It isn’t as if the school was prohibiting her from speaking.
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Going down a bit…
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As to ‘due process’, I’m not a lawyer, but my understanding is that when a government agency, including a school arbitrarily treats one person differently than others in the services that it provides, it is a violation of due process.
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How was Doninger treated differently from the other three students? You did not suggest that the other three were running for student office. Doninger was. If the other three had been elected to some student office, and the school administration had allowed them to serve, then there might be a violation of equal protection. Otherwise, no.
As noted elsewhere, you can get more details from the Connecticut section of my blog, Orient Lodge, as well as from Cool Justice.
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I am not a lawyer or legal analyst. I have reported what I saw attending the trial and reading the exhibits. The details of other cases, like Morse, Wisniewski, Tinker and others are beyond me.
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Nor did I come here to argue the merits of the case. That is not my forte. I came here to inform people that are concerned about freedom of speech about a case going on in Connecticut that has broad ramifications. As noted elsewhere, Judge Kravitz made many references to this going to the supreme court.
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The arm band case you refer to is know as the Tinker case, or Tinker v. Des Moines School District. The most notable line from Tinker is “It can hardly be argued that either teachers or students shed their constitutional rights to free speech or expression at the schoolhouse gate.”
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In the Doninger case, the T-shirts said ‘TEAM AVERY’ on the front and ‘RIP FREEDOM OF SPEECH’ on the back. The general argument about students freedom of speech is school boils down to issues of promoting illegal activity, such as was considered the case in ‘Bong Hits for Jesus’ or creating a disruption endangers students and their ability to learn.
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The school administration argued that having to answer phone calls from parents was a disruption that should not have been allowed. Personally, if I ever have my children in a school system where the school administration considers dealing with parents a disruption, I will work hard to get those school administrators replaced.
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As to the false information placed in the students disciplinary records, there was not hearing and there was no available recourse, even when the parents spoke with the school administration. It was this lack of recourse which was the primary motivator for Avery’s mother to bring the initial law suit.
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As to being treated differently, as I noted above, I did not come here to present the whole case and argue its merits. I came here to present a very brief overview of the case and encourage people to learn more. If you come to the event in Litchfield on Sunday, you can speak with the lawyer handling the case. That said, the three other students who sent the email which was deemed a disruption were, in fact, allowed to run for office. And, yes, ‘equal protection’ was the other phrase that was repeatedly brought up during the trial and had slipped my mind.
….above, the bar is lower when minors or schools are in play. You may disagree with the ideology and believe the standards should be the same, but for the time being they are not. You have not spelled out anything that is a clear cut constitutional violation, and the due process contention is off the charts, it doesn’t even come close to a due process violation for a school administration to remove a student from the student counsel as a punitive measure.
It is not my intention to spell out the clear cut constitutional violations of this case. That is the job of the lawyers who will be presenting this at the Second Circuit. I would also suggest that if it were clear cut, then this would never have made it to the Second Circuit.
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Instead there is enough of an appearance of a constitutional violation that I feel compelled to help the student raise funds necessary to get this argued properly in court, instead of simply in the blogs. If you do not feel that there is enough of an appearance of a constitutional violation, then by all means, don’t bother contributing.
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However, those who are concerned about the erosion of our civil rights, like Avery, Wally Lamb, myself, and many others, may want to help Avery fight this battle in court.
More than likely if there was a “clear cut constitutional violation,” there would be no need to file a case in this situation. Hopefully, the school lawyers would advise their clients accordingly. It sounds like you think that because you do not see a clear cut constitutional violation, the young woman and her parents should not have filed the case. Do you feel the same way about cases like Brown v. the Board of Education? I am sure one could have said at the time the Brown case was brought that there was no “clear cut constitutional violation.” BTW, due process arguments in cases such as this one are not “off the chart.” They are pretty common and sometimes successful. The fact that the judge wrote a 34 page decision indicates that there is merit to the claims in the case. He obviously felt the need to address each point raised. In my experience, a judge does write a 34 page decision if the claims raised are meritless, or as you put it, the claims are “off the chart.” They just do not have the time.
The fact that the (trial court) judge wrote a 34 page decision indicates that there is merit to the claims in the case. He obviously felt the need to address each point raised.
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Two points. One, if, as was reported in the post, the judge issued his 34 page opinion only 45 minutes after the hearing, suggests that he had pretty much written the opinion before the hearing, probably based on the motion papers. The judge may have amended the opinion a little after the hearing, but it is literally impossible to write a 34 page opinion in 45 minutes.
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Two, the trial court judge needed to address each point that had been raised in the motion. Recall that he was the trial court judge, and as such he had to respond to every argument raised in the motion papers. Why? In anticipation of an appeal: so that the appellate court would have the trial court judge’s basis for rejecting the motion on all grounds that had been raised in the motion. The role of a trial court judge is very different than the role of an appellate court.
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An observation regarding Brown vs. Board of Education. The Supreme Court’s opinion in that case did not arise out of whole cloth. It had been preceded by decades of court decisions outlawing racial discrimination in public institutions.
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Recall further that, to get a preliminary injunction issued in a case such as this, the moving party has to persuade the judge that there is a “substantial likelihood of success on the merits”*. Since we do not have access to the judge’s opinion, we do not have his reasoning as to why he believed that the moving party did not satisfy that requirement.
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Regarding *, there are other standards, one of which is that a court may issue a preliminary injunction to preserve the court’s jurisdiction pending trial, but that does not appear to apply in this case.
Let’s see, 16 year old student Avery Doninger speculates on the internet that a certain school employee is a “douche bag” and she’s punished for it.
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Avery says:
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Christ sake, it’s the internet. Who knew it was public? She should be banned from running for school Secretary, not for being rude, but rather for being stupid.
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But, the 1st amendment doesn’t discriminate much between rude speech and stupid speech, so rather than take her punishment, instead parents, let’s call out the lawyers! After all in whitebread Burlington, lawyers grow on trees. Judge squashes her, but he’s a Bush appointee, and therefore must be wrong.
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And, now she wants money to defend a case, the facts of which you analogize to something that might occur in the deep South (that backwater civilization you’ve read about)? For what? To defend the rights of you and others to call people a douche bag without repercussions?
I have the right to call you a douchebag, conservative asshole or any other pejorative I consider appropriate on this blog as long as the owners permit me to do so. This student has the same right to do so on any internet site. Her rights are the same as my rights, which are the same as your rights to call me anything you like, provided the owners of BMG allow it. It’s all so very simple. One would assume from your post that you don’t wish to retain the right to use a pejorative in response.
Of course you have the right to call anyone a douche bag, liberal asshole or any other pejorative you contrive.
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However, you should recognize, and rightfully should accept that there may be consequences of your speech, from which the Constitution won’t protect you, regardless how many lawyers you hire, or courts before which you whine. i.e. if you’re a grown-up, you could get fired from your job if you spoke ill of your employer on your Blog.
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Similarly, you also should be aware, if you are not, that First Amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings. So says the Supreme Court. i.e. you can get punished in school for being a jerk on your Blog.
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But to the case at hand where, Ms. Doninger called an official or officials “douche bags” and where she called on parents and teachers to write to the superintendent in order to “piss her off”, school officials simply and rightfully punished her.
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This student had every right to ask others to join her in “pissing off” school officials by exercising their own freedoms. Her parents had the right to correct her on what they perceived as her rudeness. Your patriarchal interpretation of the school’s rights and that of the courts will lead to the reversal of exactly what you confirm is my (and your) right.
which is why it is being appealed in the Second Circuit. This includes sections you are referring to. As an example, the quote of ‘pissing off’ is taken out of context. If you read the original post, what ‘pissed off’ the school administrator was that the school administrator had to speak with parents, that is, she had to do a core part of her job. Avery’s request for other parents to ‘piss off’ the school administrator was a request for other parents to contact the school administrator.
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It is truly unfortunate that the school administrator was ‘pissed off’ for having to do her job.
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As to the ‘to display the qualities of civility and citizen ship that the school expected of class officers and leaders’, that failure was primarily that she and three other students encouraged parental involvement in the school. Even Judge Kravitz noted during the hearing that Ms. Doninger was a model of citizenship.
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As to the ability of students to be punished for what they say in their blogs, that is, as Judge Kravitz noted, a still murky area yet to be decided by the Supreme courts. There are many criteria about what is an isn’t acceptable free speech, as noted by cases like Morse, Tinker, and Wisniewski.
The reason it is being appealed is because someone with money to burn lost.
….an adult she does not have the same rights that you do. Minors, for good or bad, have fewer rights than adults.
Some of us believe it is not for the good of society that minors have fewer rights than adults. Some of us will fight hard to prevent those rights from what we believe is further erosion.
Then we should ban many of the national politicians from running for office. I just want to be sure that I’m the one who gets to chose who is ‘stupid’ and not some political opponent of mine.
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As to punishment, if you read the case, she was punished by her parents for the stupidity and the rudeness of the speech. It seems as if the punishment for being stupid and/or rude at home should be the domain of the parents and not the schools.
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But then again, I don’t like the government in my bedroom. Your mileage may vary.
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Then school officials should have no power to punish? No detension, no ability to suspend? That’s your position?
This gets to a matter of jurisdiction. They do not have the right to punish people for something that is legally done at home on a students free time.
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So it all depends on where the student was when she typed the Blog entry? That’s inventive.
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And, if she was home, you say the school has no authority. However, if she was at school, then perhaps? What if she had a stash of illegal guns in her home but never brought one to school. I guess with your logic, the school’s barred from any action.
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Actually, that isn’t inventive at all, it is based on primarily on Morse and futhered by “Layshock v. Hermitage Sch. Dist., No. 06-116 (W.D. Penn. July 10, 2007)”
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Layshock has nothing to do with jurisdiction. The issue in Layshock is this: does the action of the student substantially disrupt school operations. That is the hurtle the school must litigate:
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Did Buffy’s blog that calls officials a “douchbag”, and blog entries that seek to encourage e-mails to “piss off the superentendent” substantially disrupt operations.
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So, by all means, let’s litigate, because the right to call your teacher a douchebag must be a right, not a privilege.
By jurisdiction, I am referring to the comment, quote above, in bold, which you seem to have completely missed.
The judge declared those punishments unconstitutional because the profile was created off campus and not during school hours, and even when opened in a school computer lab it did not cause a substantial disruption.
Like the Layshock case, the punishments are unconstitutional because the blog entry was created off campus and not during school hours, and even when opened in a school computer lab it did not cause a substantial disruption.
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If you argue that having school administrations answer phone calls from parents and tax payers a substantial disruption of operations, then you might be able to argue that the punishment was not unconstitutional. However, since a stanard part of the operations of a school is for school administrators to answer phone calls from parents and tax payers, that seems like a very flimsy argument.
…is a district court decision and has zero precendential weight.
I never claimed that Layshock has any precendential weight. It is based on Morse, which does have precendential weight. In addition, it illustrates that the argument “where the student was when she typed the Blog entry” is “inventive” doesn’t stand up.
…it doesn’t. District court decisions have no precedential weight, period. Layshock doesn’t speak for Morse.
I said, “I never claimed that Layshock has any precendential weight.” I will say it again. Layshock has no precendential weight. However, that is not related to what is being discussed.
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Nor did I say that Layshock speaks for Morse. Of course it doesn’t. Layshock invokes Morse as part of its argument. Morse is where the precedent is.
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I cited Layshock to illustrate that gary’s assertion that “where the student was when she typed the Blog entry is inventive” isn’t inventive at all, but has been argued in other courts.
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But again, as I’m trying to get through to people who want to argue the legal minutiae of the case. I am not a lawyer. I am not one to argue legal minutiae. I believe, personally, from having followed the case very closely, that Avery’s civil rights were violated. I believe that she is doing something very important in standing up for her civil rights. Because of that, I am doing all that I can to help her stand up for her civil rights.
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I realize that some people might not believe her civil rights were violated, or that she shouldn’t stand up for her civil rights. If that is what you feel, don’t bother donating to her legal expenses. If you feel very strongly about it, contact the school district and offer to write and amicus brief on their behalf.
…who needs to pay attention, my friend. You are trying to have a discussion about legal rights, constitutional rights at that. You cited a district court decision from a different district that the one in which the case you are concerned with is being argued. It has no relevance, even to Gary’s comment. It may be a novel argument in Connecticut, do you know if that is the case?
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That is the problem with advocating for civil rights when you don’t understand the legal minutiae. It is easy to get tripped up by things like not understanding the diffenence between the merits of an injunction hearing and a first amendment trial or the precedential weight of district court decision, or arguing from a perspective that minors and adults have equivalent right your own personal distaste for the reality notwhithstanding and so on. The law is what the law is, whether you are a lawyer or not.
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And you have mistaken my desire to clarify the legal framework in which you are dealing with my believing the school is correct. I don’t have enough information to form an opinion either way.
If you will have read stuff, you will see that I am not trying to have a discussion about legal rights. You are the person who seems to wish to have a discussion about legal rights.
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I came here to let people know about a fundraising event that I am attending and I hope others will attend. I am answering a few questions as best as I can to provide additional background.
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As part of this, I am pointing out a flaw in gary’s argument where he suggests the location of a student when he or she says something is an ‘innovative’ argument, when, in fact, it has been used in other cases.
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Beyond that, you are treading in very dangerous areas in suggesting that only people who understand legal minutiae should stand up for civil rights.
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It seems as if the only real defense of civil rights has come when people not versed in legal minutiae stand up for civil rights and that the major set backs to civil rights come from people who focus on civil rights.
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It may well be that you have an honest desire to gather more information and make up an informed decision. However, it does not appear that way. If you were really interested in that, you would not be spending time arguing with me in the blog. I’ve stated repeatedly that I have no legal background and am merely third party observer of the case.
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As I’ve noted before, you can get details about the case from my blogging of it at the Connecticut section of Orient Lodge. That would still be relying on third hand information from a person who is not a legal writer. You can get more information from Cool Justice which is a legal blog. From that blog, I believe you can also find the amicus brief filed in the case by the Connecticut chapter of the American Civil Liberties Union.
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You can also find details in that blog about the legal teams on both sides.
….treading into dangerous waters, and I haven’t said that in order to stand up for civil rights one must be an attorney or understand legal minutiae. You are having a discussion about legal rights, like it or not, that is what civil rights are, legal, in some cases, constitutional rights. And in the process of having your discussion you have made some misstatements and errors that required correcting. You may have started simply asking for support but the conversation expanded (before I even got involved) and you were a willing participant. I am just trying to help clarify the legal landscape.
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I don’t even know what this means, but rest assured, there always have been and always will be a substantial number of people versed in legal minutiae living at the bleeding edge of civil rights struggles leading the way and advising those who are less well versed.
And persuasion is really what legal argument is all about.
I think we learned that in the first year of law school, Anthony, didn’t we?
….also learned to choose our arguments carefully and that context is extremely important. Using a district court order to make a constitutional argument could not be less persuasive if it wanted to be.
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Don’t make arguments that don’t matter, we learned that too didn’t we?
More incredulous (and inventive) is that Anthony and I are on the same side of an argument.
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Citing the District court (Even from a different district, no?) is pretty weak, albeit referencing a S.Ct. case does give it some argumentative value, but not much.
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I typed that Mr. Hynes argument was “inventive” because he asserted that Buffy’s speech should be protected because she typed it onto a blog from home. It’s “inventive” because the S.Ct. criteria is if the speech is off school property AND not disruptive to school operations, then it’s protected. Mr. Hynes omitted the last bit–very inventive.
Not sure what that means… but of course one should never make arguments that don’t matter….
But, the 1st amendment doesn’t discriminate much between rude speech and stupid speech…
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…you might want to do a little legal research on the “fighting words” exception to the 1st amendment’s freedom of speech provision. That US Supreme Court doctrine allows states to criminalize rude speech that includes “fighting words,” that is, words that are intended to sufficiently annoy the person to whom the “fighting words” are directed. Admittedly, stupid speech may also be rude, but not all rude speech is stupid.
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As far as I can tell, there are two issues here.
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One, it is clear that the school administration can restrict speech by students–certainly on school property, but also that has been accessed (not just that is accessable) to other students that will demonstrably undermine school discipline.
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Two, it is also clear that the school admininstration cannot restrict speech by students that hold them up to ridicule, but that do not demonstrably undermine school discipline. Succinctly put, the school administration, and the instructors, do not have a right, against the 1st amendment, to punish students merely for hurting their feelings.
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On the other hand, the T-shirts may very well be deemed to be intended to undermine school discipline.
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I’m certainly not going to contribute to this case. If the ACLU hasn’t picked it up, it is probable that they don’t deem it a constitutional issue, either.
My answer to Charlie’s question is that it’s about making school into bastions of authoritarianism.
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A society in which students shed their constitutional rights to freedom of speech or expression at the schoolhouse gate prefigures one where those rights are shed everywhere.
Massachusetts Brothers and Sisters take time out of your GOTV effort for Nikki and go down to Connecticut. Please. A child’s first amendment rights have been trampled on, do it “for the children”.
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😉
It was a joke. Notice the wink. Has it really come to that. No humour.
Sorry.
Change the facts.
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Assume some kid wrote on his blog “the principal is a nigger.” Then, as result of the student’s actions, the only punishment was that the school refused to allow the kid to run for student office, because, based on the student’s actions, all of which were outside the school, the student’s conduct displayed poor character.
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Same “outrage” at the school’s discipline of my hypothetical student as is the case with Buffy following her punishment for her “douchebag” comment?
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Maybe instead of punishing Buffy, the particular school official should have brought a civil action on the basis of her accusations and defamatory remarks. Lesson learned that sometimes justice is double-edged.
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Seems to me, Buffy’s minor punishment taught her a lesson that published words have reprecussions.
Perhaps the kid should have learned manners at home. It would not seem inappropriate for the child to learn that through life you will find people that you do not care for, can’t stand, can’t reason nor communicate with, and you may work for them.
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Just learning to use these people productively is a great lesson. Most people figure out that people in positions of authority are not necessarily the best and brightest. Teachers and school administrators are, sad to say, often great examples of that.
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“I’m OK, Your OK” might be a good beginning if it is still in print.
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Court?!, are there not bigger fish to fry?
This is the big fish! It’s dangling right in front of your face and you don’t even see it. First it was the children and they were rude, but they were easy to control and we did nothing. Next it was _____, and we did nothing…. If you see a violation of someone’s rights and ignore it thinking you are above it all, sooner or later, it will be you. What is so difficult to understand? Aldon is right about this.
As I said earlier, 1st amendment rights of a student in a school don’t go as far as those outside the school.
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In other words, are you suggesting that a student should be allowed to print and say anything at all outside the school, without threat of school punishment. Because, if you are, the Supreme Court, most decidely disagrees with you.
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And, granted that the holdings in in S.Ct Case, Hazelwood, aren’t nice and tidy, this much is clear: the speech of a student outside the school may not be protected if the student’s actions are disruptive to school operations.
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Feel free to address students’ actions outside the schools: hanging nooses on trees? Using racial epithets? Calling adminstrator(s) a douchebag?
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Recall, Buffy’s only punishment was to not be allowed to run for School Secretary because the officials thought her character (as result of words on her blog posting) weren’t up to standards.
When one of your “hypothetical” children calls a liberal Democrat a douchebag on the internet, I will support your little darling just the same way I support this brave little girl. When your little sweetheart is facing punishment for encouraging others to become active and vocal about some egregious wrongdoing, I will be there too. How’s that for a hypothetical?
I’ve asked a very specific question, and of course it’s your choice, but you simply avoid it. Nice.
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It’s a simple concept: Do you think the the school ever has a right to punish for a child’s speech off the school property. S.Ct says “yes”. What do you say?
If your little darling is rude but encourages more people to become active in voicing their opinions, I will support your cute little mini Gary in those efforts, even if I disagree with the content.
Why do you simply refuse to answer?
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Do you support the position that a minor school student’s speech should be protected to the extent that if the speech is made “off-campus” then the school has no right to punish?
I did answer your question. It’s just not phrased in a way that you are willing to understand or in the manner that you wish to hear it.
if I only had lolorbs on cross-exam
right away. The funny thing about the right indent function is that’s almost literally what you feel like you’re doing on a good cross. Making the field narrower and narrower, until it’s suffocatingly small.
arrogance, black and white thinking. Check, check, check. How frustrating that blogs aren’t courtrooms where you are in control! If I were an attorney, I’d have a field day with you in court.
Hazelwood
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…has no applicability to this case whatsoever. Hazelwood involved a school sponsored newspaper, and, of course, the school, as publisher, maintains editorial control thereover.
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If you’d read the Memorandum of Decision (I did) you’d find Hazelwood v. Kuhlmeier cited. I must therefore conclude that the District judge must be wrong.
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Or you.
because the n-word could constitute hate-speech, couldn’t it? As the closest thing to law school I’ve done is the LSAT wikipedia will have to do. Hate speech could be said to be
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Calling somebody a “douchebag,” isn’t exactly prejudicial action, inciting violence, and it isn’t based on a group of people.
There’s no law against hate speech. If I type here “_____ is a nigger” or “_____ is a douchebag”, I’ve committed no crime.
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My example stands. Would you endorse school punishment of a student making one statement on his blog and not the other?
Let’s put aside the legal issue for a second. If your kid comes home and you get a call from the school about how s/he wrote that his/her teacher is a “douchebag,” that’s a very different conversation than if the teacher were called the n-word.
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Neither is smart and both types of language need to be punished in some way, I suppose, depending on your parenting style. Perhaps you and I can agree that using racially charged derogatory language is at least a little different [I would argue worse] than “douchebag.” In accordance with that, I would imagine that the punishment would therefore be different — punishment done by the school or by the parents.
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I would also add that using the n-word is implicitly a social phenomenon with deeper roots that need to be addressed, whereas the occasional use of the other word isn’t. So it might be reasonable for a school to address in some way the former and not the latter.
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Look, we can agree or disagree about whether Avery should have been punished by the school for using certain words on a personal blog. But perhaps you can understand why somebody might think it appropriate for a school to handle one and not the other. In one case you have hate speech (which I know isn’t illegal) with the implicit historical and social baggage the word comes with and in the other you have an offhanded remark using a “bad” word. In the former, there’s a larger social point in addition to issues of what is respectful and what is not. In this case, it’s perhaps worthwhile to take it to the student body at large. In the case of offhandedly saying “douchebag,” it’s almost only about being simply respectful. And that kind of behavioral issue ought to be handled privately between school administrators, the teacher involved, the parents and the student. It shouldn’t be making it into the news or blogs, or, I suppose I should add, the courts.
You just want to raise money for this Don Quixote-ish quest to – what? Be formally installed as Secretary?
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But we take civil rights and liberties seriously, and your inability to define them will not get you much cash. At one point, you said, “I thought I was writing for my usual audience”, or words to that effect. BMG is VERY reality-based, and pleas for cash should take that into consideration.
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Disclaimer: When I was in 6th grade, I ran for class president in a mock election. I insisted on running as a Communist, as it was a duly constituted political party, just to goof up my teacher’s Democrat-Republican civics lesson (it was during the Cold War). When I announced my platform, I said that since I would collectivize the classroom, there would be no more homework and no more rules, except as set by the people. I won in a landslide, but the administration didn’t let me take office either. The idea of clogging up the judicial system with such a complaint seems outlandish to me.
I am shocked, shocked, shocked. Did that make everyone who voted for you a communist sympathizer? I guess the quote above, about being a liberal at 25 shows heart and a conservative at 30 shows head, should include being a communist at 12 shows spunk? 😉
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In any event, it sounds like there is a little bit more at stake in the present case than a “mock election.” I am not saying I understand what the legal arguments are or how is should come out, but I do think it is important to challenge what looks like an extreme exertion of power and authority, even if it is a school setting. As someone who was in jr. high when black armbands were put on in opposiiton to the Vietnam War, I am grateful that Tinker brought the issue before the Supreme Court. I remember being scared into not expressing my beliefs and I remember people being expelled who did. As you know, the Tinker case is one case among many school cases which set important precedents about the First Amendment and civil rights, for example, see the Barnett case, and I think they have made us a better country.
My beliefs were irrelevant to my teachers, who were more interested in the curriculum than the culture. This was in the ‘tabula rasa’ era of teaching.
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And Mr. Moran, who went on to City Administration of schools, was entirely correct in being suspicious of my motives – at heart, I wanted to stir up some fun/trouble and tweak his Lyndon-Johnson-like nose about civics, which he made dull. (These same impulses got me into trouble in school in 1968-69 as well).
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I think I recognize a kindred spirit in Team Ashley, and while this may bode well for her in later life, I cannot help thinking that her current insistance on being class secretary is a little narcissistic, and having daddy bankroll her with the courts is ludicrous. And soliciting donations from afar is even worse.
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Ashley – READ Thoreau and ‘Civil Disobedience’. He’s the first one to say that while you should do what you think is right, you should ALSO suffer the CONSEQUENCES of those actions bravely and cheerfully.
…it’s quite obvious that Hazelwood has nothing to do with the instant case. Do you have a URL to the memorandum of decision?
It is true that the plaintiff was seeking a temporary and permanent injunction and the judge found no grounds for and several precedents a right to participation in an extra-curricular activity. I disagree with the precedents which were at the appellate level, but such is life.
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The judge recognized the issue of having to remove the tee shirts as a First Amendement problem, but not relevant to the plaintiff’s petition.
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The administration argued, and was backed up by the student handbook, that Avery Doninger did not conduct herself as is required by a student officer. I think there’s a constitutional issue involved in student handbooks. Schools force students to sign off that they are responsible for knowing everything in them, but they can’t sign away their rights to due process or free speech as it seems to me students may have done at Lawrence Mills High School. Such signing is, however, par for the course at all high schools these days.
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There have been cases concerning internet speech outside of school, which I can’t remember this morning. But one involved a student who advocated killing his teacher.
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To really understand the facts of the case, you have to read the judge’s decision. I’m not a lawyer, so I’m probably not entirely right here. As far as the gross incompetence of the administrators dealing with this issue, I think the Lewis S. Mills mission statement says it all,
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Students will develop and demonstrate knowledge of processes and an awareness of rules and responsibilities of citizens in a democratic society.
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The focus is on rules and responsibilities, NOT rights. Aside from jury duty, there are no responsibilities legally imposed by the Constitution. Rules exist, though schools rarely teach them. Only rights, which are constitutionally assured, are left out of LMHS’s mission statement.
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Mark
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