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Doninger: One Good Fool Deserves Another

In Burlington, Conn., folks at the Lewis S. Mills High School take themselves a little too seriously. The result is a First Amendment case that could yield important new legal principles as it wends its way through the appellate courts.

Some background: Students organize an annual music festival called the Battle of the Bands. They wanted to use the brand-spanking new high school auditorium, but to do so required a technician approved by the school board. The technician was unavailable the day the festival was to be held, thus throwing the date of the event into question.

Remember, this is Burlington. Nothing happens there. Pattis's 7th law of social dynamics holds as follows: Adolescent energy abhors a vacuum. If there isn't an issue to emote over, find one.

Enter Avery Doninger, a junior student council member and class secretary. She tried to meet with the school administrators to salvage the date for the festival. When that didn't happen, she and others sent an e-mail to parents and others urging them to contact the school to demand that the festival take place as scheduled.

Because this is Burlington, parents did just that. The principal, Karissa Niehoff, and superintendent, Paula Schwartz, were angered by it all. Doninger then went to a private web site and from a home computer wrote a blog entry calling the folks in the school's central office "douchebags," and urging more folks to call or write to "piss [the school superintendent] off even more."

It would be better if this child's passion were harnessed to a real issue, perhaps global warming. But this is Burlington, after all.

Doninger's churlish behavior came to the school's attention. She was punished for her incivility by being forbidden to run for reelection to class office. Her fellow students voted for her as a write-in candidate anyway, and she won by a plurality. School officials refused to seat her in office.

Doninger sought an injunction voiding the election she couldn't run in, removing the student the board had seated, and requiring a new election. U.S. District Court Judge Mark Kravitz denied the request, finding that Doninger did not show a substantial likelihood of success on her constitutional claim. For this ruling, Kravitz, a brilliant jurist of unquestioned integrity, has been tarred and feathered online by Doninger's supporters. Somehow this young woman has become a folk hero, a regular Joan of Arc, storming schoolhouse gates and armed with soiled feminine hygiene products.

Kravitz appears to have been seduced by the common law doctrine that the courts will not second guess school administrators on their essentially pedagogical functions. Hence, while school officials may have overreacted, that is the school's call. But isn't this child being punished for petitioning for redress of grievances?

The judge concludes that the school needs to teach civility. Doninger's uncivil discourse justifies disciplinary action.

But Doninger spoke off school premises. She did not use school property to emote. Sure, her message had an effect on the school. She issued a rallying cry. This should be protected speech.

This case may be destined for the Supreme Court. It tests the boundaries of a school's ability to discipline speech in the age of the Internet. Sadly, these important principles arise in the context of tawdry facts, facts which suggest that Doninger and the school administrators somehow deserve one another.

Reprinted courtesy of the Connecticut Law Tribune.

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