How NOT To Choose A Supreme Court Nominee

BURLINGTON, Conn. – The following story is a bit long, but if you stick with it, there's an important point about Supreme Court nominees to be made – and besides, it's a hell of a good story:

Avery Doninger was pissed. As a Student Council member and Junior Class Secretary at Lewis Miles High School (LMHS) in 2007, she'd been part of the planning for "Jamfest," an annual "battle of the bands" that had already been postponed twice because of delays in opening the school's new auditorium ... and now, it was going to be postponed again because the teacher responsible for the auditorium's lights and sound equipment wasn't available on the date selected, April 28.

Not being entirely without brains and resources, the students proposed that either a professional be hired for the day to run the equipment, or that a parent supervise student technicians to run the auditorium's systems – but the school's principal, Karissa Niehoff, and the schools' superintendent, Paula Schwartz, decided that that wasn't good enough; either the date or the location would have to be changed. They offered the school cafeteria as an alternate venue, but the bands wouldn't be able to hook up their electric instruments there, and the Student Council was concerned that if the date were pushed back a third time, some bands would drop out, or they'd run up against the end of the school year and no one would attend.

So Doninger and three other Council members did what any American might do in such a situation: They exercised their First Amendment right to petition the government – in this case, the school superintendent – for redress of their grievance.

In other words, they sent out an email blast informing students of the situation and requesting that recipients contact Schwartz to urge that Jamfest be held as scheduled ... and that they forward the email blast "to as many people as you can."

Almost needless to say, all hell broke loose – or at least what passes for "hell" in a high school in a suburb of Hartford. Niehoff, who'd been attending a training seminar on the day the phone calls and emails started flooding in, was called back by Schwartz, and according to Niehoff's later testimony, told Doninger that Schwartz was so upset that she'd ordered Jamfest cancelled. (Later, the district court judge believed Niehoff's denial that any such conversation took place.) Niehoff also castigated Doninger for sending out the mass e-mailing, told her that Student Council members were "expected to work cooperatively with their faculty advisor" and the administration, and additionally that they were charged with "demonstrat[ing] qualities of good citizenship at all times." (Apparently, student-citizens petitioning the government isn't considered "good citizenship" in central Connecticut.)

Niehoff also later testified that she told Doninger that the administration was in fact willing to reschedule Jamfest so it could be held in the new auditorium, and asked Doninger to send out a corrective email which, again according to Niehoff, Doninger agreed to do.

However, instead, that night (April 24), Doninger posted to her blog (which was totally unaffiliated with the school) a message beginning, "jamfest is cancelled due to douchebags in central office. here is an email that we sent to a ton of people and asked them to forward to everyone in their address book to help get support for jamfest. basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and emails and such. we have so much support and we really appriciate it. however, she got pissed off and decided to just cancel the whole thing all together. anddd so basically we aren’t going to have it at all, but in the slightest chance we do it is going to be after the talent show on may 18th."

Doninger reproduced on the blog the email blast she and the Student Council members had sent, as well as the letter Doninger's mom had written to Schwartz, concluding, "And here is a letter my mom sent to Paula [Schwartz] and cc’d Karissa [Niehoff] to get an idea of what to write if you want to write something or call her to piss her off more. im down."

Sure enough, more students contacted Schwartz "to piss her off more" in response to the blog post, and also left comments on the blog, one of them referring to Schwartz as a "dirty whore."

Not that the petitioning had any effect, because after all, according to Niehoff, Jamfest hadn't been canceled, but the following morning, Schwartz, Niehoff and some other faculty met with the Student Council to inform them that Jamfest had been rescheduled to June 8, and supposedly also lectured them on "the impropriety of mass emails in this context and the proper conduct of student officers in resolving disputes with the administration."

And shucks, "because of the Jamfest controversy," Schwartz and Niehoff were "forced to miss or arrived late to several school-related activities scheduled for April 24 and April 25."

And not only that, but even after the June 8 date was announced, Schwartz and Niehoff continued to get phone calls and emails about the "controversy." But supposedly the pair didn't learn about Doninger's blog post until nearly two weeks later, and after reading it, they "concluded that Avery's conduct had failed to display the civility and good citizenship expected of class officers." (Therefore, to take a some what extreme analogy, former Ambassador Joseph Wilson – Valerie Plame's husband – "failed to display civility and good citizenship" when he put the lie to Dick Cheney's contention that Saddam Hussein had been trying to acquire yellowcake uranium.)

Niehoff also "noted that the posting contained vulgar language and inaccurate information," at least according to Niehoff's version of things, and that Doninger had supposedly "disregarded [Niehoff's] counsel regarding the proper means of addressing issues of concern with school administrators."

And so Niehoff prohibited Doninger from running for Senior Class Secretary ... but decided to wait ten days – until the day the nominations for class offices were to be announced – to tell her. At that time, Niehoff required Doninger to apologize to Schwartz in writing, to show a copy of the blog post to her mother, and to withdraw her candidacy for Senior Class Secretary. Doninger did the first two, but refused to withdraw, so Niehoff "declined to provide an administrative endorsement of Avery's nomination, which effectively prohibited her from running."

"As a result of Niehoff’s decision," wrote Second Circuit Judge Debra Ann Livingston in a unanimous opinion in Doninger's (actually, her mom's) lawsuit for a preliminary injunction against Schwartz and Niehoff, "Avery was not allowed to have her name on the ballot or to give a campaign speech at a May 25 school assembly regarding the elections... Even though she was not permitted to be on the ballot or to campaign, Avery received a plurality of the votes for Senior Class Secretary as a write-in candidate. The school did not permit her to take office, however, and the second-place candidate became class secretary for the Class of 2008." [Emphasis added]

But despite Doninger's having received more than two-thirds of the students' votes for the Secretary position as a write-in candidate, Judge Livingston denied Doninger's suit to either be declared the winner of the election, or in the alternative, to hold a new election in which Doninger would be formally allowed to participate.

And who was one of the judges who played a role in authoring that unanimous decision? Judge Sonia Sotomayor, who's now being roundly touted as one of the top candidates to replace Justice David Souter on the U.S. Supreme Court.

"We begin with some basic principles," Judge Livingston wrote. "It is axiomatic that students do not 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' It is equally the case that the constitutional rights of students in public school 'are not automatically coextensive with the rights of adults in other settings,' but must instead be applied in a manner consistent with the 'special characteristics of the school environment.' Thus, school administrators may prohibit student expression that will 'materially and substantially disrupt the work and discipline of the school.' Vulgar or offensive speech — speech that an adult making a political point might have a constitutional right to employ — may legitimately give rise to disciplinary action by a school, given the school’s responsibility for 'teaching students the boundaries of socially appropriate behavior.' Similarly, so long as their actions are 'reasonably related to legitimate pedagogical [teaching] concerns,' educators are entitled to exercise editorial control over school-sponsored expressive activities such as school publications or theatrical productions. Such controls 'assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school.'" [Citations removed here and below]

Let's not forget what we're talking about here. The so-called "vulgar or offensive speech" are the words "douchebag" and "piss" – clearly not among the "seven dirty words" prohibited by the FCC from being spoken on radio or TV – and the "boundar[y] of socially appropriate behavior" under discussion is Doninger and her friends informally petitioning the school administration not to cancel the Jamfest – an action all citizens, even minors, have a constitutional right to do. The only "legitimate pedagogical concern" Schwartz and Niehoff could be attempting to "teach" Doninger is not to exercise her constitutional right to protest.

While acknowledging that the Supreme Court has yet to speak on the scope of the school's authority to regulate off-campus speech, "We have determined, however, that a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct 'would foreseeably create a risk of substantial disruption within the school environment,' at least when it was similarly foreseeable that the off-campus expression might also reach campus."

Translation: Schwartz and Niehoff got phone calls and emails that they allege caused them to miss or be late for some appointments – this is a "risk of substantial disruption"?

Indeed, Livingston, Sotomayor and the third panelist, Judge Loretta A. Preska, thought so, citing the seminal case of Tinker v. Des Moines Independent Community School District, a 1969 Supreme Court case which limited students' free speech rights "in a manner consistent with the 'special characteristics of the school environment,'" and further apparently finding that Doninger's letter would "materially and substantially disrupt the work and discipline of the school."

Right; use of the words "douchebag" and "piss" would "substantially disrupt the work and discipline of the school"!?!

"As the Supreme Court explained in [Bethel School District No. 403 v.] Fraser, a school may regulate 'plainly offensive' speech — that is, speech that is 'offensively lewd and indecent' — in furtherance of its important mission to 'inculcate the habits and manners of civility,' both as values in themselves and because they are indispensable to democratic self-government," Judge Livingston continued. "As the Court noted, '[t]he undoubted freedom to advocate unpopular and controversial views in schools must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.' It is thus 'a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.' To be clear, Fraser does not justify restricting a student’s speech merely because it is inconsistent with an educator’s sensibilities; its reference to 'plainly offensive speech' must be understood in light of the vulgar, lewd, and sexually explicit language that was at issue in that case."

Of course, it's debatable whether the words "douchebag" or "piss" are "plainly offensive" or "offensively lewd and indecent" or "vulgar and offensive" or "vulgar, lewd and sexually explicit," but it seems clear that the panel, while recognizing that the courts can't restrict Doninger's speech merely because it offends some "educator's sensibilities," seems perfectly willing to do so by legal fiat because it offends their sensibilities. And let's not forget, we're talking about a single use of one standard and one arguably non-standard vulgarity which are clearly not "sexually explicit."

In any case, the panel (including Sotomayor) concluded that Doninger had violated the Tinker standard.

"There are three factors in particular on which we rely to reach this conclusion," Judge Livingston wrote. "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... 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... 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."

First, labeling Schwartz and Niehoff "douchebags" is simply the modern equivalent of calling them "assholes," neither of which have any real sexual connotation, and the construction that students, if they wanted, could email or phone the administrators to "piss them off more" was hardly an exhortation to disrupt school work or discipline; it was simply to add to the pressure to restore the Jamfest, which despite one finding by the panel seems in fact to have been canceled before Doninger and the other students began applying pressure to restore it. Just who was spreading "misleading" or "false" information – Doninger or the administrators – is open to question. And finally, exactly how the use of two – and only two – reasonably common vulgarities, together with invoking her First Amendment petition rights, demonstrates that Doninger "fail[ed] to comply with the obligations inherent" in her Class Secretary position boggles the imagination.

"Avery was disqualified from running for Senior Class Secretary after school administrators determined that her behavior was not 'consistent with her desired role as a class leader' — meaning in this context that it was inconsistent with LMHS school policy providing that student government should teach good citizenship and that any student who does not maintain a record of such citizenship may not represent fellow students," the court said. Folks like the late Martin Luther King, Gloria Steinem and even likely Barack Obama would be interested to learn that their community organizing activities in the face of arbitrary exercises of power by those in authority were not, according to this court, "good citizenship."

So in the end, the panel found that Schwartz and Niehoff had not abused their discretion in denying Doninger her elected position as Class Secretary ... and the opinion behind that conclusion bodes ill for whatever free speech concerns might confront Sotomayor should she manage to obtain a seat on the U.S. Supreme Court.

"The continual expansion of the authority of school officials over student speech teaches a foul lesson to these future citizens," wrote constitutional scholar and law professor Jonathan Turley of the Doninger decision. "I would prefer some obnoxious speech than teaching students that they must please government officials if they want special benefits or opportunities... Central to any definition of good citizenship is free speech and not social conformity."

"The test applied by the Circuit is extremely curious, holding that the district was appropriate in disciplining Avery because her blog post 'created a foreseeable risk of substantial disruption'," wrote the Hartford Courant in an editorial on the case. "Almost as a matter of historic definition, weeding out acceptable exercise of Freedom of Speech because it had the potential to create thought and ideas that might be disruptive fundamentally undermines the right. What point is there to speech that evokes no thought or ideas? It's disruptive speech that the 1st Amendment protects..."

"While this might be mistakenly viewed as a recognition that disruptive speech is protected, don't be fooled," the editorial continued. "This aspect serves only to relieve school officials of the duty to prove harm first, allowing them to foreclose speech for their own mere anticipation. It further reduces the test to one of theoretical disruption, providing even greater deference to school officials to discipline students despite no adverse consequences. If protected speech is limited to a chat about who's taking whom to the prom, or what the popular girls were wearing to the dance, no protection would be needed. The irony of the Circuit's decision is striking: What better speech to protect than that which challenges government officials?"

And of course, Doninger herself had a few choice words.

"At age 16 I became a citizen fully engaged in the democratic process. I filed for injunctive relief: not suing for money but for justice," she wrote. "I believe in democracy. I believe in the Constitution and the Bill of Rights. I believe that each citizen is responsible for participating in the maintenance of democracy by challenging government officials when they overreach. The principal accused me of a failing to be a good citizen. I disagree. Apathy and passivity are poor citizenship. Rallying students and the community to petition the government is good citizenship. I failed at vocabulary, not citizenship. However, the First Amendment does not limit protection to those with sophisticated vocabularies (though I will not make the error of rudeness again)... If as citizens we refuse to defend liberty in our own backyards, how do we expect to bring democracy to Iraq or Korea or any place suffering under tyranny? Civil liberties are eroded slowly when citizens don't bother to insist on challenging unconstitutional practices. Citizens, particularly students who are the next generation of leaders, must be willing to take on the responsibility of maintaining and protecting democracy while enjoying the rights democracy affords."

But the one who "eroded ... civil liberties," who "refused to defend liberty," was Sonia Sotomayor in failing to dissent from the panel's opinion in the Doninger case. Adult industry supporters and members should keep this firmly in mind if Sotomayor's name is proposed to replace Justice Souter's on the U.S. Supreme Court.

Because if Sotomayor is unwilling to protect "douchebags," she sure as hell won't be willing to protect "cocksuckers" and "motherfuckers."