June 2, 2011
By Christopher Dunn With high school graduations taking place across the country, teenagers are being urged to go boldly into the world to make it a new and better place for themselves and for generations to come. Meanwhile, the Second Circuit has delivered a very different message to high school students: keep your heads down and don’t challenge authority. In the late 1960s the United States Supreme Court upheld the right of students to wear black armbands protesting the Vietnam War in an opinion that was extraordinary in extolling the value of student speech and condemning efforts by school officials to suppress that speech. Though professing to adhere to that case, the Second Circuit in late April rejected a First Amendment claim about a high school student’s t-shirt with an opinion that illustrates how far the lower courts have come in turning their back on the spirit of the Supreme Court’s seminal ruling. Protesting the Vietnam War To this day, the most important student speech case in American jurisprudence remains the Supreme Court’s 1969 ruling in Tinker v. Des Moines Independent Community School District.1 The plaintiffs were high school students John Tinker and Christopher Eckhardt (15 and 16 years old, respectively), and John’s sister Mary Beth Tinker, a 13-year-old junior high school student. In December 1965 the three wore black armbands to their Des Moines schools to protest the Vietnam War. School officials suspended all three, and the students sued. The Supreme Court’s decision in Tinker is notable not because it created new doctrine that recognized or significantly expanded the free speech rights of students. Indeed, the Court repeatedly endorsed the notion, relied upon by the District Court, that school officials could take action against student speech that substantially or materially disrupted the school or its students or threatened such disruption. Rather, what makes Tinker remarkable is the language the Court used in characterizing the threat posed by school restrictions on student speech, language that dramatically emphasized that the disruption standard was to be read and applied narrowly to allow maximum student speech. Adding to the import of this language is the fact that the Court’s opinion came out in 1969 amid a heated domestic controversy over the Vietnam War, which would explode a year later with the shootings at Kent State University. At the outset of its analysis, the Court made the oft-quoted observation, “It can hardly be argued that either students or teachers shed their constitutional rights of freedom of speech or expression at the schoolhouse gate.” From this fundamental but vanilla premise, the Court moved on to a bolder statement about the limits on school officials’ ability to invoke a concern about possible disruption: [I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom – this kind of openness – that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society. From this warning to the lower courts about the limits on the disruption exception to student free speech right, the Court then used dramatic language to characterize the threat posed by suppression of student speech, likening it to totalitarianism: In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. Finally, the Court discussed the important role that student speech played in the educational process, noting that the value of such speech was not limited to “the supervised and ordained discussion which takes place in the classroom.” Rather, students were free to speak about controversial subjects when “in the cafeteria, or on the playing field, or on the campus during the authorized hours” so long as it was not materially disruptive. In summarizing its expansive view of student free speech rights, the Supreme Court observed, Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. . . . [W]e do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom. Given these views, it was no surprise that the Court found unconstitutional the decision to suspend the students for wearing the protest armbands. Students, the Internet, and T-Shirts in 2011 Many things have changed in the law since 1969, but the applicability of Tinker to student free speech disputes is not one of them. One would never know that, however, in light of the Second Circuit’s April 25 ruling in Doninger v. Niehoff.2 Doninger arose out of student reaction to a decision by school officials to postpone or move a May 2007 musical event that had been scheduled to take place in the auditorium of a Burlington, Connecticut high school. One of the principal organizers of the event was the plaintiff Avery Doninger, who at the time was a junior at the high school and was the Junior Class Secretary, an elected position on the student council. After learning of the school’s plan for the musical event, Doninger undertook a campaign to pressure the administration to allow the event to take place as originally scheduled. Among other things, she posted from her home at night an entry on her personal blog saying the event “is cancelled due to douchebags in central office,” providing earlier communications about the controversy, and encouraging others to write or call a school official “to piss her off more.” In response to the blog entry, the school refused to allow Avery Doninger to serve as a candidate for Senior Class Secretary under a school policy that conditioned such positions on students maintaining “a good citizenship record.” In response she and some of her supporters made t-shirts reading “Team Avery” on the front and “Support LSM Freedom of Speech” on the back (“LSM being the school’s initials) to wear to the school assembly where approved candidates would give speeches. Upon learning of the t-shirts, the principal stationed herself at the doors outside the auditorium and required students wearing the shirts to take them off. Despite this and despite not being allowed to speak, Doninger won the election, a result invalidated by the school administration. The case reached the Second Circuit in a somewhat complicated procedural posture and with additional facts, but little of that is of consequence. Rather, what is significant is the extraordinarily crabbed approach of student free speech conveyed through the opinion written by Judge Debra Ann Livingson, who is rapidly emerging as an aggressively conservative voice on the Second Circuit. Before addressing the t-shirt issue directly controlled by Tinker, it is worth noting the Second Circuit’s treatment of the school’s punishment of Doninger for her blog posting. Tinker of course did not address student speech that takes place off campus, and the ability of school officials to sanction such speech has been the subject of considerable controversy in recent years, particularly with the central role that the Internet now plays in students’ lives. In Doninger the Court did not address whether the school discipline violated Doninger’s First Amendment rights but decided only that the right claimed by Doninger was not “clearly established” under qualified immunity doctrine. Nonetheless, the Court’s treatment of the blog posting is deeply worrisome. While this portion of the opinion warrants its own column, suffice it to say that the notion that school officials can punish a student for nothing more than a personal blog posting that is impertinent and calls upon students to contact school officials to complain about their actions is a betrayal of the spirit of Tinker and the very notion of student free speech rights. Turning to the t-shirt dispute, the Court noted at the outset of its analysis that school officials claimed their actions were justified because of two possible forms of threatened disruption: “vocal outbursts or other disruptions in the assembly to which the students were reporting” and “a possible write-in campaign to elect Doninger as Senior Class Secretary even though she had been removed from the ballot.” To many, the mere articulation of these concerns would signal the end of the case. How, for instance, could “a possible write-in campaign” constitute a “disruption,” much less a type of disruption allowing school officials to bar otherwise protected speech? And the potential for “vocal outbursts” at an election assembly? Isn’t that what is supposed to happen at such events? Not in the Second Circuit, as the panel not only proceeded with what can only be described as a tortured analysis but also ruled against the plaintiff. As with the blog posting, the Court chose not to rule on the constitutionality of the t-shirt ban and instead focused on the narrower issue of whether the ban violated a clearly established right for purposes of qualified immunity. The panel’s first stratagem was to suggest that some “hiterto unrecognized grounds of regulation may exist” that would apply to the case rather than the Tinker disruption standard. While claiming neither to recognize nor “express a view” about any such grounds, Judge Livingston argued that the differences between wearing anti-war armbands and wearing “Team Avery” t-shirts might be so significant as to warrant an entirely new legal standard, and that this possibility was sufficient as to make the now 42-year old Tinker standard not clearly established for purposes of this case. Under this type of approach, some would argue that no legal standard anywhere is clearly established, a position that would allow government officials to escape damage liability for all unconstitutional conduct. Even if Tinker did apply, however, the panel still found there could be no damage liability. The Court acknowledged that a jury could conclude that the school officials were wrong to believe the threatened disruption was substantial. Nonetheless, while paying lip service to Tinker, the panel removed this question from jury consideration, ruling instead that summary judgment had be granted to the school officials if schools officials could have been found to have reasonably anticipated the disruption, which the panel found a jury could have here. Under this standard, school officials would be immune for all student speech violations except in what seems like the highly unusual case in which the court concludes that no jury could find a prediction of disruption to be reasonable. Looking Forward Student speech disputes are a staple of constitutional litigation, and advocates can and will find ways to distinguish Doninger. What cannot be ignored, however, is the stark contrast between the robust view of student speech that is the hallmark of Tinker and the dismissive, almost hostile, view of student speech in Doninger. Adolescence is a time for teenagers to explore many dimensions of becoming adults, including developing independence and a willingness to question and confront authority. Central to the First Amendment is the recognition that dissent by its nature can be messy and uncomfortable for those in positions of power. Tragically, the Second Circuit seems to be losing sight of that. Footnotes: 1 393 U.S. 503 (1969). 2 Nos. 09-1452-cv, 09-1601-cv, and 09-2261-cv. Christopher Dunn is the associate legal director of the New York Civil Liberties Union.

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