School districts in Connecticut looking for guidance on how to handle discipline of students engaging in provocative speech on-line at home have been watching with interest the outcome of two cases in the Third Circuit that seemed to reach conflicting results.  Both cases were re-heard by the Third Circuit Court of Appeals, sitting en banc, which recently ruled in favor of the student in both cases.  So, where does that leave us? 


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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.


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