Sotomayor Ruled in "D-Bag Case" (Against Teen Exercising Free Speech)

NBC news ^ | 5.28.09 | By YVONNE NAVA and LEANNE GENDREAU

[meandog]

President Barack Obama’s nominee to fill a Supreme Court vacancy has yet another tie to Connecticut. She sided against a student in the infamous “douche bag” case, and that has upset some free-speech advocates.

In August 2007, Judge Sonia Sotomayor sat on a panel that ruled against an appeal in Doninger v. Niehoff.

Avery Doninger was disqualified from running for school government at Lewis S. Mills High School in Burlington after she posted something on her blog, referring to the superintendent and other officials as "douche bags" because they canceled a battle of the bands she had helped to organize.

[BP2]

I respect your points. But the Board abused its power — they took action against a student because her words were against them personally.

Would the Board have acted the same if she called you or I douche-bag on her blog? I seriously doubt it.

At best, you or I could have filed a libel case against the girl — and it would have been thrown out by any competent judge.

[meandog]

Rude, disrespectful brats are also unsuitable role models. She was a rude and disrespectful brat. She was barred and it was right that it was so.

You get no argument there DieHard; but the point IS that she has a right to be rude and disrespectful under the first amendment of the U.S. Constitution.

[BP2]

More on this story...

The case went to court originally in 2007. This is from last year when the girl graduated from high school.

Read the cutline from this photo from 2008:

Lewis Mills High School, Burlington, CT: Graduating senior and Plaintiff Avery Doninger after shaking the hand of Principal and defendant Karissa Neihoff, who had just been suspended for two days because she discussed Doninger's personal information with a complete stranger on e-mail.

Now, some might say maybe Karma is at work more so than Justice in Burlington, Conn's Regional School District #10. And yes, Neihoff should not be discussing information about a case and student outside of the school...

However, I think it seems that the School Board has WAY too much time on their hands, so they feel the need to regulate their students' AND TEACHERS' words over the Internet.

Perhaps the School District should make some cutbacks in the size of their Board ... or better yet, just stick to educating...

[meandog]

Absolutely unbelievable! The student gets suspended and loses her school privileges to run for student council because of her blog (courtesy of Sotomayor) YET the school’s principal goes on e-mail and discusses the student’s case...??????

[Mr. Blonde]

Is your boss a government employee? The 1st amendment applies to the government not private employers.

[Mr. Blonde]

Do you think this would have really caused a foreseeable risk of substantial disruption to anything? I find it very hard to believe. I can’t see how her presence on the student government would disrupt anything.

[Sloth]

First of all this girl was way out of line calling the administrators “douche bags”.

First, I think it's important to determine whether the administrators are, in fact, douchebags. Truth is always a defense.

[BP2]

They BOTH got punished. I agree with the Principal's 2-day suspension -- she's a district employee, and she used a school computer to send an email to a stranger, discussing an ongoing legal case.

The word douche-bag seem to set off the School Board to deny the student Doninger to hold office. "Stick and stones can break my bones, but WORDS can never hurt me" -- we all remember that one from our childhood. That's why cruel and unusual punishment is NOT permitted by our Constitution, but Free Speech is.

Next time it could be YOUR child who says something you deem as not incitement at all, but the School Board takes offense to it and punishes your kid. Would they punish someone for using the word Nimrod, obtuse, jackass? Maybe, now they've been given the nod to do so by the court and Sotomayor...

Here is the student's, Doninger, blog post as quoted in the decision:

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. andd..here is the letter we sent out to parents.

The post then reproduced the email that the Student Council members sent that morning. The post continued:

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.—

Avery then reproduced an email that her mother had sent to Schwartz earlier in the day concerning the dispute.

The court decision -- left to Stand by Supreme Court nominee Sotomayor -- said that this was disruptive and thus fair grounds for government sanction and not subject to First Amendment protection. Their decision relies on three factors:

1. The language was offensive, and would incite offensive communications by students and parents to the school.
2. The explanation that the event had been canceled was misleading, and the confusion created by that misleading information might be disruptive to the school.
3. No showing of actual disruption is required - only the potential for disruption.

Yeah, I have a problem with that ruling, and how Sotomayor let it stand.

[Sloth]

Another way to look at it is the Court refusing to recognize a Right to Consequence-Free Speech, and allowing the girl to experience the consequences of her behavior, and declining to get involved in what is rightly a school’s prerogative to decide who may participate in school extramural activities and on what basis. This is how I see it.

Slippery slope. The school is not just another private entity -- it is a public school, i.e., a government agency. There should be limits on how much ability the school has to retaliate against students for legal off-campus activity. Saying that they have a free hand to punish such behavior opens the door for other governmental bodies to use punitive means to silence critics.

[BP2]

At worst, provided Obama IS re-elected and doesn't declare a permanent dictatorship, we only have to put up with him until 2016.

Sotomayor is 55 years old. She could be handing down A LOT of similarly flawed rulings like THIS one until she retires, probably in the mid-2020's.

The idea of that alone should bring ANY Conservative to his or her feet to help get the word out ...

... that even beyond her racism, even beyond her incompetence, Sotomayor's radical ideology is destructive to the freedoms bestowed to us in our Constitution!

Good thing I'm not a Senior at Burlington, Connecticut Regional School District #10 — they probably wouldn't let me “walk across the stage” for such “disruptive” language...

[wintertime]

Slippery slope. The school is not just another private entity — it is a public school, i.e., a government agency.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

Of all the comments I have read so far yours is the only one that comes close to understanding the fundamental conflict.

Government schools mean government force!

Unless a parent can ransom ( in the form of private tuition or homeschooling expenses) their child from the government school, that child and his parent are under the threat of **police action** to serve time in their government indoctrination camp!

Police threat and government schools go hand in hand and this is why there is a constitutional conflict. If this had been a private school with a private contract made between the parents and the private school their would have been no constitutional issue raised whatsoever.

Of course the **only** solution is to completely abolish all government schools. The state requires that all children to be fed but doesn't run compulsory and tax-funded grocery stores. The state can insist that parents make a good faith effort to educate their children without being in the business of owning and running schools.

[Starwolf]

Doninger v. Niehoff was a reversal of prior precedent that basically said schools could not control or punish off campus speech, a precedent that went back to the 60s. Doing so in the past has cost several school districts thousands of dollars in penalties. It was a bad decision. Off campus is off campus, even what is being done or said annoys the educrats and NEA members.

We faced a somewhat similar problem at a school my kids went to. There was a website that was very critical of certain administrators and staff by name. They tried to suppress it and find out who was running it for the express purpose of punishing the students responsible. They never did, the principal who was a D-bag and then some also moved on.

[meandog]

The worry for me is that if she is regarding a minor as having no right to free speech based upon the fact that she is under 18 and it would be a "disruption of authority" how do you suppose she is going to decide if a case appeared before her, say on a forced abortion of a girl under the age of 18? Surely, also, she will have absolutely no reason to grant rights to infants in utero

[valkyrieanne]

I can't believe readers who are siding with Sotomayer on this issue. Her decision was flat out wrong, and I hope it gets overturned at a higher level. It doesn't matter what the girl called the principal. She was on her OWN blog, on a NON-school computer. Would you agree with Sotomayer if she had called the principal a "liberal," and he wanted to punish her for that?

Free speech is free speech, no matter who you are. Nor do minors lose their right to free speech (read the Tinker case, or the Hazelwood MO case) by virtue of being under 18.

What is the point of being conservative if you don't defend freedom?

[dfwgator]

School is about teaching kids respect for authority.

No that's the parents' job.

[DieHard the Hunter]

> I respect your points.

And likewise, I respect yours.

> But the Board abused its power — they took action against a student because her words were against them personally.

True — I’ll concede that.

An alternative punishment could have been to abolish the Student Government altogether for that year, “because we felt like it”. As it isn’t a part of the core curriculum there’s not a darn thing anyone could say about that — it would not have singled her out for punishment, and it would be grossly unfair to all the rest of the student body.

Perhaps the school principal should have considered that course of action instead. If he’s going to abuse his power arbitrarily, do it properly and thoroughly, and leave no fingerprints. Let her peers sort it out with her once it becomes known that she is the cause of no Student Government this year.

Group punishments were used commonly when I was in school: they were always unpleasant for the group, but always much moreso for the perpetrator: the group made sure of that.

> Would the Board have acted the same if she called you or I douche-bag on her blog? I seriously doubt it.

Probably they wouldn’t. The big difference between calling me a Douche-bag and calling the Principal a Douche-bag is that she does not have to have a good healthy working relationship with me, should she become a member of the Student Government. She does need to have a good healthy working relationship with the Principal: it’s a pre-requisite. By showing this contempt and disrespect for the Principal, it can be argued that she has eroded any chance of a healthy working relationship beyond reconciliation, and thus has disqualified herself from Student Government.

[DieHard the Hunter]

> Slippery slope. The school is not just another private entity — it is a public school, i.e., a government agency.

True. And Student Government is an extramural activity, not part of the core curriculum that the school is obligated to deliver. A requirement of that Student Government must surely be that its members enjoy a good, healthy, productive working relationship with the School Administration members.

It can be argued that this girl, by calling one of them a “Douche-bag” in a public forum (her blog) has compromised that requirement beyond repair.

(yes, adults are supposed to be bigger than that, but...)

> There should be limits on how much ability the school has to retaliate against students for legal off-campus activity.

It was off-campus, but also was very public: a blog isn’t the same thing as a private diary. Everybody in the world, presumably, can read it — that’s the whole point of blogging.

What she did was actually worse than taking out an ad in the local paper and calling the Principal a Douche-bag. Presumably, if I could be bothered to look for it, I could read her blog all the way over here, in New Zealand.

> Saying that they have a free hand to punish such behavior opens the door for other governmental bodies to use punitive means to silence critics.

In truth, they do already. It isn’t right that it is so, but it happens all the time.

I guess this child just got her first lesson in Realpolitik from the School of Hard Knocks. She ought to be grateful that it happened in a relatively-safe forum. It’s a valuable lesson.

[DieHard the Hunter]

> Do you think this would have really caused a foreseeable risk of substantial disruption to anything? I find it very hard to believe. I can’t see how her presence on the student government would disrupt anything.

It could hardly contribute to a good, healthy, productive working relationship between the Student Government and the school’s Administration. She will have gotten away with being grossly disrespectful, and others will have known it.

Better to make an example of her, to encourage the others.

[DieHard the Hunter]

> You get no argument there DieHard; but the point IS that she has a right to be rude and disrespectful under the first amendment of the U.S. Constitution.

It’s true. But Free Speech isn’t always Consequence-free Speech. Sometimes what we say can come back to bite us in the arse.

I can put myself in this Principal’s position very easily:

“Here’s me, sanctioning an extra-mural activity that is going to take lots of my after-school time and for which I will not be paid one brass razzoo extra. The Student Government, where they all get to test-drive making adult decisions. I’m fine with that concept so far.

“And here we have this particular student, who has called me a “Douche-bag” in the past, in public, on her Internet blog. She is a brat and will not work productively with the Administration.

“So I’m supposed to donate my time and effort to a Student Government, of which she will be a member, and for my efforts I am expected to tolerate future episodes of Douche-baggery and abuse on her blog — or perhaps even worse? Whatever next?

“Shyeah right. Hang that for a bad joke! Where’s that in my employment contract? I’m not going to have her on the Student Government because I cannot work with her.”

First amendment doesn’t enter into that part of the discussion: all the Principal needs do is say “either she goes or I don’t sanction the activity” and that’s that.

It’s Realpolitik, to be sure, but certainly not illegal.

[metesky]

You're wrong. The "little brat" was commenting in an off-campus blog that had nothing to do with the school.

Besides, most teachers and school administrators are douche bags in my experience.