Archive for May 30, 2008

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

This portion of the lawsuit was seeking an injunction against the admin’s decision to prevent her from running for office only. The 2nd Circuit lays out the standard and focuses on the second prong:

Tinker provides that school administrators may prohibit student expression that will “materially and substantially disrupt the work and discipline of the school.” Tinker, 393 U.S. at 513.

The district court found that her posting, although created off-campus, “was purposely designed by Avery to come onto the campus.” Doninger, 514 F. Supp. 2d at 216. The blog posting directly pertained to events at LMHS, and Avery’s intent in writing it was specifically “to encourage her fellow students to read and respond.” Id. at 206. As the district court found, “Avery knew other LMHS community members were likely to read [her posting].”

Contrary to Doninger’s protestations, moreover, the record also supports the conclusion that Avery’s posting “foreseeably create[d] a risk of substantial disruption within the school environment.” Wisniewski, 494 F.3d at 40. There are three factors in particular on which we rely to reach this conclusion. First, the language with which Avery chose to encourage others to contact the administration was not only plainly offensive, but also potentially disruptive of efforts to resolve the ongoing controversy. Her chosen words — in essence, that others should call the “douchebags” in the central office to “piss [them] off more” — were hardly conducive to cooperative conflict resolution. Indeed, at least one LMHS student (the one who referred to Schwartz as a “dirty whore”) responded to the post’s vulgar and, in this circumstance, potentially incendiary language with similar such language, thus evidencing that the nature of Avery’s efforts to recruit could create a risk of disruption.

Second, and perhaps more significantly, Avery’s post used the “at best misleading and at wors[t] false” information that Jamfest had been cancelled in her effort to solicit more calls and emails to Schwartz. Doninger, 514 F. Supp. 2d at 202. The district court found that Avery “strongly suggested in her [post] that Jamfest had been cancelled, full stop, despite the fact that Ms. Niehoff, even according to Avery’s own testimony, offered the possibility of rescheduling Jamfest later in the school year.” Id. at 214. This misleading information was disseminated amidst circulating rumors of Jamfest’s cancellation that had already begun to disrupt school activities. Avery herself testified that by the morning of April 25, students were “all riled up” and that a sit-in was threatened because students believed the event would not be held. Schwartz and Niehoff had received a deluge of calls and emails, causing both to miss or be late to school-related activities. Id. at 206. Moreover, Avery and the other students who participated in writing the mass email were called away either from class or other activities on the morning of April 25 because of the need to manage the growing dispute, as were Miller, Hill, and Fortin. It was foreseeable in this context that school operations might well be disrupted further by the need to correct misinformation as a consequence of Avery’s post.

Finally, the district court correctly determined that it is of no small significance that the discipline here related to Avery’s extracurricular role as a student government leader. The district court found this significant in part because participation in voluntary, extracurricular activities is a “privilege” that can be rescinded when students fail to comply with the obligations inherent in the activities themselves.

I think when you read the entire decision, it is clear that her actions were more than simply calling administrators douchebags. When viewed in that context, the actions are certainly more defensible and definitely do not portend the demise of the First Amendment.

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