Justices Decline Student Internet Speech Case, Others Await

By Mark Walsh — November 01, 2011 4 min read
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The U.S. Supreme Court has declined to take up a case involving school punishment of a student for Internet speech critical of school administrators. However, two other appeals raising similar student free-speech issues are pending before the justices.

The high court on Monday turned away the appeal of Avery Doninger, who, as a Connecticut high school junior in 2007, had criticized school officials in her Web journal. After a dispute with officials at her high school in Burlington, Conn., over the scheduling of a band contest, Doninger referred to administrators as “douchebags” and encouraged her readers to email the superintendent “to piss her off more.”

School officials, citing disruption by the emails and Doninger’s Web comments, barred her from running for senior class secretary, but she wasn’t suspended. Doninger and some of her fellow students were also later barred from wearing T-shirts at a school assemby that said “Support LSM Freedom of Speech,” referring to Lewis S. Mills High School.

Doninger and her mother sought an injunction barring her discipline, but a district court and a panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, which included then-Circuit Judge Sonia Sotomayor, ruled against her.

The student continued to press her claims for damages under the First Amendment’s free-speech clause. She lost in 2009 in federal district court, which granted qualified immunity to the school officials who disciplined her.

In an April decision, another 2nd Circuit court panel agreed that administrators were immune from the suit.

In her appeal to the Supreme Court in Doninger v. Niehoff (Case No. 11-113), the student said her case raised important questions about the right of school administrators to punish students for speech published outside of school on blogs and other Internet forums.

The justices on Oct. 31 declined without comment to hear Doninger’s appeal.

Two other appeals involving student Internet speech are pending before the high court.

In Kowalski v. Berkeley County Schools (No. 11-461), a West Virginia student who was disciplined for creating a MySpace page targeting another student at her high school is seeking the court’s review.

Kara Kowalski was a student at Musselman High School, in Berkeley County, W.Va., in 2005 when she created a MySpace page that suggested another female student had herpes. School officials concluded that Kowalski had created a “hate” Web site in violation of school policies against harassment, bullying, and intimidation.She was suspended from school for five days and given a “social suspension” of 90 days, meaning she was barred from certain school activities, including the cheerleading squad.

She sued under the First Amendment, but both a federal district court and a panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., upheld school administrators. The 4th Circuit said in a July decision that “school administrators are becoming increasingly alarmed by the phenomenon” of harassment and bullying, and that “where such speech has a sufficient nexus with the school, the Constitution is not written to hinder school administrators’ good faith efforts to address the problem.”

Meanwhile, the case that may have the best chance of attracting the interest of the justices is an appeal that encompasses two cases decided in June by the full U.S. Court of Appeals for the 3rd Circuit, in Philadelphia.

The appeal in Blue Mountain School District v. Snyder (No. 11-502) involves a 3rd Circuit decision that said students who ridiculed their principals online could not be punished by school authorities because the speech was created off campus and did not substantially disrupt schools.

The 3rd Circuit ruled in the Blue Mountain case that a Pennsylvania middle school student’s MySpace parody depicting her principal as a sex addict and a pedophile was so outrageous that no one could have taken it seriously.

In a companion case, Layshock v. Hermitage School District, the appeals court overturned the discipline of a Pennsylvania high school student who created a fake MySpace profile of his principal on a computer at his grandmother’s house. The fake profile played on the principal’s purported interest in “big” things, such as smoking a “big blunt,” being a “big steroid freak,” having stolen a “big keg,” and having been drunk a “big number of times.”

The 3rd Circuit court found that the profile did not create a substantial disruption in school, and the court rejected the school district’s arguments that other facts created a nexus between the parody and the school.

The joint appeal on behalf of the Blue Mountain and Hermitage school districts tells the justices that “these cases present important and urgent First Amendment questions regarding the scope of school officials’ authority over student online speech.”

“At the moment, school officials are stuck between a rock and a hard place,” the appeal says. “They are responsible for protecting students and teachers from online harassment, but in doing so, they might trigger a lawsuit from a student claiming that his or her First Amendment rights have been violated. School officials cannot afford to wait any longer for a definitive answer.”

The earliest the justices could announce whether they hear the Kowalski appeal is after their Nov. 22 private conference. A decision on whether to take the Blue Mountain/Hermitage appeal probably wouldn’t come until December at the earliest.

A version of this news article first appeared in The School Law Blog.