Last week, the Second Circuit Court of Appeals upheld the lower court ruling.
In a controversy over the scheduling of a social event at Lewis S. Mills High School in Burlington, Conn., Doninger wrote in an entry in her public blog at the site livejournal.com that "jamfest is cancelled due to douchebags in central office" and that readers should contact the superintendent "to piss her off more."In reading through the opinion of the Second circuit, I am struck that the judges seized upon the language the Donniger used in her blog posting, noting that schools have a right to control the language used in the schools (which they do) and expanding that scope to language used off-campus or in otherwise public spaces.
The standard that was used, whether the off-campus langauge would come to the attention of the school authorities and carried a risk of disruption of the school, seems misapplied. To be direct, the whole purpose of the blog posting was designed to garner some attention to what appears to be a legitimate greivance and hope to obtain some advantageous resolution. In short, Donniger was lobbying--albeit in a rather crude way.
The problem with the standard that was applied is that it comes from a case, Wisiewski v. Board of Education, which dealt with a case of graphic depictions and possibly exhortations to kill a teacher. The is a massive difference between a violence oriented message and a "lobbying message." Sure, Donniger's intent may have been to irritate the adults, but that is hardly a new state of affairs for adults dealing with teenagers.
Indeed, I wonder if the Court of Appeals were swayed more by the langauge used in the message than the message itself. There may have been some false and misleading information, but is that enough to justify the broad scope given to school administrators to regulate the behavior of their students?
I fear this case will be misread, as it is often said that bad cases make for bad law, coming to stand for the proposition that if an off campus comment, no matter what its intent, will be deemed within the purview of school administrators to discipline the student if it can be construed as affecting school operations. In effect, if the administrators don't like the message, they can claim the right to censor and/or censure the speaker by claiming a disruption.
Let me posit a relatively plausible scenario. A student is bullied on campus--not physical violence, but simply verbal harrassment to the point that the student feels threatened. The student makes a plea to the administration who does nothing, for whatever reason. Then the student posts the events and the school's response on his/her Facebook page and then begs the public and her peers to contact the school and ask them to do something about the bullying. Arguably this is a valid public plea and within the purview of the school to protect this student. however, because the school is inundated with calls and emails, the school sanctions the student by denying her the ability to hold office in her student organization. Assume further that the student does not use offensive language, but is proper and respectful in her pleas.
What is the result? As you can see, the Donniger case could be found to stand for the propostion that the speech of our bullied student could cause a disruption in the school and the school would be within their rights to sanction the student.
There is a broader question of where is the line between sufficiently off-campus activity and more clearly regulated on-campus activity? In the age of modern, efficient and easily discoverable electronic communication, can the line be drawn?
In general, I will always come down on the side of more speech is better speech. I can see the regulation of campus newspapers (I don't like it but I can see it) and/or on campus extracurricular activities or school sanctioned off-campus events (see the Bong Hits 4 Jesus case). But as you can see, there is an increasingly fuzzy line that is extended further and further afield. As you move further from the school campus, the measure of control over student speech becomes less tenuous. We have moved from a school sanctioned event to speech that, if uttered by an adult in a similar situation, would have been clearly protected speech, discusses school decisions. Is the determinative factor the less than polite language (you can hear worse on prime-time TV) and the age of the speaker?
Yes, Donniger could have used better language, but assuming she was completely clean, the message would have been to call teh school and voice your displeasure and that is the disruption.
What kind of message are we sending about the censorship of ideas and speech of young people just because we don't like their tone?