Avery Doninger, the First Amendment and Some ‘Douchbags’
One of the sad truths about being a fan of the First Amendment to the U.S. Constitution (1) is that you are rarely defending people’s rights to read Huck Finn. No, you get to defend pornographers, Ann Coulter and teenagers who call people “douchbags” (sic).
Avery Doninger, after an altercation with her high school about who could use the school auditorium, described unnamed school administrators as “douchbag” in her Live Journal blog. The school stripped her of her position as class secretary and when her fellow students reelected her, writing her in as her name was not permitted on the ballot, the school threw out the write in votes. Her family sued on the basis that her right to free expression was being thoroughly trampled on. The judge ruled in favor of the school basing his ruling on a precedent that students were not free to, for example, yell “Fuck you” in school hallways.
That’s right. The Internet is contained within the halls of a public high school. All your base are belong to us. I’m certainly no lawyer but that strikes me as a generous interpretation of the precedent and a rather dangerous one as it extends the authority of the school, already too great in my opinion and certainly far more extensive than at the time of the Tinker vs. Des Moines ruling, beyond the doorway of the schoolyard into the wider world. Or, in adolescent parlance, that is seriously fucked up.
Following the logic of this ruling a school could penalize a student who wrote an expose of school corruption, a novel the administration didn’t like, or used a personal blog to prostelize her faith and claim all non-believers were going to hell. Sound extreme? Never underestimate the eagerness of school administrations to use every tool at their disposal to control students.
Somehow this system, a system that denies students the right to free expression even outside the school, a system that throws out the results of elections it does not like, this system is supposed to teach young adults how to be participating members of a representative democracy. However, you are going to have to tell me how that is going to happen because, frankly, I don’t see how an individual can go from functioning in this kind of petty tyranny to participation in an open society with any kind of ease.
(1) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
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September 27th, 2007 20:56
The more I hear about schools nowadays and the closer we get to needing to make a decision about them, the closer I get to homeschooling, which is something I never saw myself doing.
September 28th, 2007 11:18
Oh, do I ever hear you on the homeschooling, Jenn. Stacie, given that you’re a teacher and have an advanced degree, what are your thoughts on homeschooling? I’d love to read a post from you on the subject.
I agree that it’s pretty clear that your outside writings are legally protected by freedom of speech. If she had been expelled from school, or even subjected to administrative discipline like suspension, I would be in complete agreement with you.
However, the consequence here was that she lost her position as class secretary, a voluntary position that the school is under no legal obligation to allow her to hold. There’s no right to be a class officer, and the school could have revoked her position for any reason they saw fit. The courts have repeatedly held that extra-curricular activities such as this are voluntary, and can be subjected to conditions which would be rights violations if imposed on the student body at large.
You could easily be fired from a job for calling your boss a “douchebag” on your blog (the quintessential Dooce-ing, although I think her preferred imprecation was the c-word). You have the legal right to say it, and your job has the legal right to fire you for whatever reason they like.
I don’t think it’s a terrible thing that this girl is learning the lesson, at a relatively early age and in a reasonably non-harmful way, that actions have consequences and that sometimes it’s a good idea to conduct yourself with grace.
September 28th, 2007 11:46
“…a system that throws out the results of elections it does not like”
Well, I guess then they actually are teaching her about real world, unfair as it may be.
September 28th, 2007 12:44
Emma - My concern isn’t whether or not the little twit in question gets to be class secretary but the implications of the legal ruling against her and how schools will interpret this as giving them carte blanche to discipline students in school for speech enacted outside school. For example, if a kid calls her teacher an ineptly spelled insult on a blog, could that student face suspension, as you mentioned, based on this ruling? And I’m not certain that the job analody holds as students cannot choose to attend another high school unless their parents are both willing and able to pay private school tuition; high school isn’t exactly employment at will.
September 28th, 2007 13:23
I’d like to make a cynical remark about how they ARE teaching students how things are out in society. But that makes me feel icky. So I think I won’t. I agree with you that the school is going too far here, and also that it’s too bad that in the pursuit of Rightness it is necessary to defend such unworthy recipients.
September 28th, 2007 13:36
Stacie, I actually did consider discussing the issue of school as government agent, and the legal requirement to attend school. It’s a valid point, and there is a difference between a job and schooling; however, the parallels between jobs and activities are much closer.
I went and looked up the actual decision, and it explicitly addresses the distinction between voluntary extracurriculars and administrative discipline. Furthermore, from reading the case, it appears that there’s a pretty substantial body of law (not just Tinker) to draw on when making that distinction. I’m not a lawyer, but even to my inexpert eye, it’s clear that this ruling would not give any cover to a school district seeking to suspend a student (see pages 19-25).
September 28th, 2007 15:15
How sad is it that this girl’s parents have never taught her to stand up for herself and what she believes in without resorting to name calling? Seems like she should have learned that ’round about first grade. She missed out on a great opportunity to work for change (for whatever it was that she wanted the administrator to do in the first place) and instead is learning about lawsuits.
September 28th, 2007 15:46
Douchebag is spelled with an ‘e’
September 28th, 2007 15:51
Amie - I know. The young lady spelled it wrong. Thus the quotes around it. I could add a “sic”…
I do hope if I ever insult someone and end up the focus of a first amendment case as the result that I, at the very least, spell the insult correctly.
September 28th, 2007 16:42
An interesting case. I can’t decide with whom I agree (Stacie or Emma B). It is full of tetchy legal distinctions, which aren’t my long suit. I do think that both the girl and the school board have acted in a manner that seriously lacks consideration and grace. I’d expect that of a teen; but not of an adminstration that is supposed to be providing an example to young people.
I say, Pooh Pooh on the School Admin; and Go To Your Room to the kid in question.
September 28th, 2007 16:52
“I do hope if I ever insult someone and end up the focus of a first amendment case as the result that I, at the very least, spell the insult correctly.”
My point exactly. And, douche bag is two words, not one.
September 28th, 2007 17:12
I actually don’t think Stacie and I fundamentally disagree, Pam. If the kid had been suspended from school or expelled, I’d be right there up in arms with Stacie. First Amendment violations are serious business, or they ought to be.
It’s actually because I take the FA seriously that I’m glad to see this ruling came out as it did. If we put a suburban teenager’s position as class officer on the same level as a government arresting a columnist for an unfavorable editorial, that doesn’t elevate the teenager’s standings — it diminishes the seriousness of the arrest.
September 28th, 2007 17:42
Emma’s research into the limitations of the ruling are reassuring. I still have several concerns.
1. I don’t like the way that high school students’ rights are being slowly eroded. Tinker was 40 years ago and since then there have been several major rulings that curtail free expression within schools. Teenagers are still members of our society.
2. I disagree with the fundamental assumption in this case that speech on a blog falls into the same category as speech within the grounds of the school. Calling someone a name isn’t illegal and I suspect that all students are not held to a standard of spotless conduct to participate in activities.
Additionally, I doubt she would have been penalized for her writing if she hadn’t already antagonized the school administration by going above their heads and seeking popular support from taxpayers so the students could use the school auditorium for a music festival. (When the school superintendent got a slew of emails supporting the students’ bid to use the auditorium she was upset and the school cancelled the festival. This was the conflict that sparked the infamous “douchbag” comment.)
3. How do people learn to participate in a democratic society when they are trained in our educational institutions as they are currently structured?
September 30th, 2007 01:11
Wow. I think the ruling is terrible. Of course resorting to name calling is “wrong”, but it is not a reason to bar someone from running for office. Not in the school, and not in the so-called real world. Dick Cheney, our vice president, told a senator to f*ck himself on the Senate floor. Not on the internet, not in a dairy. On the floor of the Senate in session.
I also think it makes the administrators look intolerant and probably will cause some loss of respect of authority in the school.
October 3rd, 2007 11:10
[…] Twinkies Avery Doninger, the First Amendment and Some ‘Douchbags’ The story of Avery Doninger, censured by her school for something she wrote on her blog, supported […]
October 4th, 2007 09:48
Wow…I’m surprised by how inaccurate your summary of the case facts are. I would think you could present the facts of the case, which can be found here: http://www.nysd.uscourts.gov/courtweb/pdf/D02CTXC/07-03604.PDF and let your audience think for themselves.
This is a great read.
Another more realistic take on the case can be found here as well: http://brownraysman.typepad.com/technology_law_update/2007/09/back-to-school-.html
October 5th, 2007 17:55
[…] Turner presents Avery Doninger, the First Amendment and Some ‘Douchbags’ posted at The […]
October 8th, 2007 21:55
There are four U.S. Supreme Court cases that deal with the First Amendment rights of public school students.
Tinker v. Des Moines Independent School District, 1969: In protest against the Vietnam War, high school students wore black armbands to school. The principal suspended the students who refused to remove the armbands, after fearing they were going to cause disturbances. The Supreme Court in a 7-2 decision overturned the suspension, saying that public schools can’t restrict student speech unless they can prove a disturbance resulting from the speech is likely to “materially and substantially interfere” with school operations.
Bethel School District No. 403 v. Fraser, 1986: A high school student was suspended for giving a sexually suggestive speech at a school election assembly. The Supreme Court upheld the suspension by a 72 vote, saying a school is entitled to teach its students “the boundaries of socially acceptable behavior” and can ban lewd, vulgar or profane student expression on school grounds or at school sponsored events without having to show likelihood of disruption.
Hazelwood School District v. Kuhlmeier, 1988: A high school principal refused to allow the school’s official student newspaper to publish controversial articles about pregnancy and divorce. The Supreme Court sided with the principal, 5-3, saying the Tinker case does not apply to school-sponsored student speech. The court’s decision found educators may “in any reasonable manner” control content of school-sponsored publications, productions and other expressive activities.
Morse vs. Frederick, 2007: A high school student was suspended for displaying a sign that said “Bong Hits 4 Jesus,” while the students had been allowed during school time and under school supervision to watch the Olympic Torch go by in the streets. The court ruled 5 4 that his suspension was constitutional, saying that just as in the Fraser case, schools have the right to teach socially acceptable behavior, including deterring drug use. Schools can punish or prohibit student speech advocating illegal drug use even if it is not likely to cause disruption.
— Source: The Center for First Amendment Rights
October 8th, 2007 22:10
Real Justice — You seem to have a fairly slanted view of the case yourself.
Another alternative source of information for those interested in the case would be http://cooljustice.blogspot.com/search?q=avery+doninger
January 1st, 2008 13:30
I just stumbled on this conversation, which I’m sure you’re long past done with. But a few comments nonetheless as I’m close to this case. A) the mother was very disappointed in the girl’s choice of language. B) the mother was fully prepared to punish her and even to work with the school to punish her in a reasonable way. C) douchebag was NOT spelled incorrectly in the blog - it is some crazy erroneous reporting that took off like wildfire - look at the exhibits as posted in the filings… D) this is a kid who has contributed endlessly to school and community, she has never been in trouble - it was a misstep that was up to the family to contend with. E) Does anyone really think it’s a good idea for school administrators to be making decisions about what a student does at 9:30 at night? F) look at the court exhibits- the administrators behaved like martinets. They issues an extreme punishment for behavior they had no constitutional right to punish. So many issues with this case that ARE fundamentally about democratic principles.
January 2nd, 2008 15:30
Lydia — I think we are in total agreement that the administration had no legal right to punish her for speech made outside of school. I am sorry I repeated the misinformation about her misspelling.