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Second Circuit Court of Appeals Issues Decision on Disciplining a Student for Off-Campus E-Mail

April 29, 2011

The Second Circuit Court of Appeals has issued a decision concluding that Region 10 school officials were entitled to qualified immunity as to a former student’s claims that they had violated her First Amendment rights by not allowing her to run or serve as Senior Class Secretary as a direct consequence of her off-campus internet speech, and for prohibiting her from wearing a printed t-shirt at a school assembly.

By way of background, a Lewis Mills High School student, Avery Doninger, had sent e-mails to parents, students and others which referred to school officials in a derogatory manner and encouraged recipients to write and call the principal to “piss her off.” As a consequence, the school did not allow the student to run for re-election as a class officer, although it permitted her to retain her current position as a Junior class officer. At a subsequent school assembly where candidates for class officers were to give speeches, students were not allowed to wear t-shirts which were printed with “Team Avery.” Ms. Doninger claimed that both of these actions by school officials violated her First Amendment rights.

In affirming the District Court’s decision to grant summary judgment on behalf of the school district, the Court of Appeals did not determine whether school officials had violated the student’s First Amendment rights by preventing her from running for class officer based on her e-mail. It concluded, however, that it was objectively reasonable for school officials to conclude that the student’s behavior was potentially disruptive of school functions and the Doninger was not free to engage in such behavior while serving as a class representative.

The Second Circuit Court of Appeals decision is another in a long line of student freedom of speech decisions, and provides some interesting commentary on this topic. The Court acknowledges that “The law governing restrictions on student speech can be difficult and confusing, even for lawyers, law professors, judges.” Which is why, the Court noted, school officials are entitled to be shielded from liability for mistaken, but reasonable decisions. The Court also rejected the student’s argument that off-campus speech could not be the subject of school discipline, noting that “school authorities ought to be accorded some latitude to regulate student activity that affects matters of legitimate concern to the school community, and territoriality is not necessarily a useful concept in determining the limit of their authority.”

While providing finality for the school officials involved, the Second Circuit’s decision is certainly not the final word on the disciplining of students for on and off-campus speech. The only thing that is certain, as noted is the Court’s opinion, is that “School principals have a difficult job.”

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