Much ado about douchebaging?

The blawgosphere is up in arms about the 2nd Circuit’s decision today in Doninger v. Niehoff, a.k.a., the “douchebag” case (get the witty title? )

I have not been inclined to follow this case very closely and I will admit that I made up my mind early on, stemming from some archaic sense of discipline and respect and other such nonsense. Reading the blog posts today, however, I wondered if I was wrong. So I decided to do the only sensible thing and read media reports the decision.

What I also found in the blawgosphere was a mis-reporting of the facts. Perhaps they thought they were the MSM for a day.

So let’s look at the facts, as found by the District Court and adopted by the 2nd Circuit:

1. Jamfest was some sort of band-off, which was scheduled for April 28.
2. At a student council meeting on April 24, the students were made aware that, for reasons that are unimportant, the date or venue needed to be changed yet again.
3. That morning, four students, including the plaintiff, met in the computer lab, accessed someone’s e-mail account and sent out a mass e-mail to students, asking them to contact administration to urge them to hold Jamfest as scheduled.
4. Both defendants received an influx of e-mails and telephone messages. One of them, who was away for the day on school business, had to be called back to deal with the situation.
5. Later that day, the principal spoke with Avery in a hallway and advised Avery that she was disappointed that the student council had resorted to mass e-mails rather than going to her or the superintendent to resolve the issue.
6. The principal also expressed disappointment that the e-mail contained incorrect information, because the administration was open to moving Jamfest to another location.
7. Avery apparently agreed to send out a corrective e-mail. That never happened.
8. That night, the infamous blog post appeared, which stated that “jamfest is canceled due to douchebags in central office” and exhorted students to write and “piss her off more”.
9. Lots of students took up that request and wrote and wrote.
10. The very next day, the student council and the administration decided that Jamfest would be rescheduled for June 8.
11. Despite this resolution, the administrators continued to receive e-mails and calls about rescheduling.
12. On May 7, the post in question was discovered by the son of the superintendent.
13. The principal concluded that concluded that Avery’s conduct had failed to display the civility and good citizenship expected of class officers.
14. They declined to endorse her nomination for Senior Class secretary, though she was permitted to remain as a representative in the Student council.

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.