Second Circuit: First Amendment Law Protecting Student Speech is Confusing

The next chapter in the continuing saga of Doninger v. Niehoff, et al. was decided and issued by the United States Court of Appeals for the Second Circuit on April 25, 2011.  You may recall reading about this case in 2008, when the Second Circuit upheld the decision of District Court Judge Mark Kravtiz denying the plaintiff student's motion for a preliminary injunction.  At that point, the student, Avery Doninger, was attempting to force the defendant school district to allow her to run for class office, even though she was being disciplined for her off-campus blog speech as conduct unbecoming a potential class officer. 

Following that decision, the defendant school officials moved for, and were granted, summary judgment on a variety of claims brought by the plaintiff student including a claim that they violated her First Amendment rights.  The case was certified to the Second Circuit on an interlocutory appeal to allow the plaintiff to appeal the dismissal of claims against the defendant school officials on grounds of qualified immunity.  The finding of the Second Circuit?  Essentially, First Amendment law is so confusing that even we judges have trouble sorting it out, and school officials should not be held personally liable under these circumstances when, arguably, a reasonable jury could find that they got it wrong.

To refresh your memory, Avery Doninger was class secretary at the time of the original incident, in which she was upset by the potential postponement or relocation of a battle of the bands event at her high school, and so she allegedly did a few things in protest: (1) in concert with others, she accessed a home e-mail account from school and caused an e-mail letter to be sent out to numerous parents and students about the alleged injustice of the actions of school officials, (2) she posted, at home, on her personal livejournal blog (using inappropriate language for school-related communications), a protest statement and a call to action for others to contact school officials, and (3) after she was banned from running for class office and others started a write-in campaign for her, she contemplated and was prohibited from wearing a Team Avery T-shirt during the assembly for candidates to make speeches.

Qualified immunity essentially protects school officials from liability for civil damages when their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known". Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).  Qualified immunity, it is noted, protects "all but the plainly incompetent or those who knowingly violate the law".  Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007).  So, the primary question on this appeal was whether Avery Doninger's First Amendment rights were so clearly established that no reasonable jury could conclude anything other than school officials violated those rights.  The Second Circuit says that these questions are sometimes so nuanced and difficult, meeting this standard is exceedingly difficult: "The law governing restrictions on student speech can be difficult and confusing, even for lawyers, law professors, and judges. The relevant Supreme Court cases can be hard to reconcile, and courts often struggle to determine which standard applies in any particular case." (Slip Op. at 29-30).  Furthermore, "[the] line between the potential for 'substantial disruption of or material interference with school activities'...and the potential for less significant interference is similar to the 'hazy border' that the Supreme Court has recognized to exist between acceptable and unacceptable uses of force." Id. at 32.  Therefore, the school officials here were entitled to the benefit of the doubt and would not be subjected to a jury trial that could result in a possible award of damages for violation of the student's First Amendment rights.  While noting that a reasonable jury could find that the school principal was mistaken in her assessment of the risk of substantial disruption inherent in the student's expression, the court concluded that such a mistake would be a reasonable mistake, given the state of the law under the First Amendment.

While this means that school officials here are spared being individual defendants in a jury trial, this does not necessarily represent the last word on this case. There may still be claims pending in lower courts that will be subject to trial, and as of Tuesday, it was reported by major media outlets that the plaintiff was considering filing a petition for rehearing en banc before the entire Second Circuit Court of Appeals, or a petition for certiorari to the United States Supreme Court. Stay tuned.

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