Circuit Splits

Does the 1st Amendment Permit Viewpoint-Based Restrictions on School-Sponsored Speech?

Last month we looked at a circuit split arising from the Supreme Court’s 1988 decision in Hazelwood School District v. Kuhlmeier, in which the Court recognized a public school’s right to restrict “school-sponsored speech” without offending the First Amendment where the restriction is reasonably related to a legitimate educational concern. (You can read the post here.) As a result, schools have broad discretion over the curriculum presented to students. 

Last week in Ward v. Polite, the Sixth Circuit found that "the First Amendment does not permit educators to invoke curriculum ‘as a pretext for punishing [a] student for her . . . religion’” because such speech “discriminating against the religious views of a student is not a legitimate end of a public school.” Nos. 10-2100/2145 (6th Cir. Jan. 27, 2012). This position appears to be consistent with those taken by the Ninth and Eleventh Circuits in the following circuit split:

A split exists among the Circuits on the question of whether Hazelwood requires viewpoint neutrality. Compare Fleming v. Jefferson County Sch. Dist., 298 F.3d918, 928 (10th Cir.2002) ("We hold . . . that Hazelwood does not require educators' restrictions on school-sponsored speech to be viewpoint neutral.") and Ward v. Hickey, 996 F.2d 448, 454 (1st Cir.1993) ("[T]he Court in Kuhlmeier did not require that school regulation of school-sponsored speech to be viewpoint neutral.") with Planned Parenthood of S. Nev., Inc. v. Clark County Sch. Dist., 941 F.2d 817, 830 (9th Cir.1991) ("Because their decision to limit access, whether wise or unwise, is reasonable and not an effort at viewpoint discrimination, the school district did not violate the first amendment in declining to publish Planned Parenthood's advertisements.") and Searcey v. Harris, 888 F.2d 1314, 1319 n. 7 (11th Cir.1989) ("Hazelwood . . . does not alter the test for reasonableness in a nonpublic forum such as a school but rather provides the context in which the reasonableness of regulations should be considered. . . . [T]here is no indication that the [Hazelwood] Court intended to drastically rewrite First Amendment law to allow a school official to discriminate based on a speaker's views.") Because we conclude that Hazelwood does not apply in this case, we do not consider whether Hazelwood requires viewpoint neutrality.

Chiras v. Miller, 432 F. 3d 606, 615 n.27 (5th Cir. 2005). You may recall a similar situation in Keeton v. Anderson-Wiley, No. 10-13925 (11th Cir. Dec. 16, 2011), in which the Eleventh Circuit upheld the university’s action taken against a student counselor who refused to comply with the purported curriculum on religious grounds. It looks like Ward  and Keeton are at odds with each other, doesn't it? Not so fast, says the Sixth Circuit: “there is less tension, or for that matter even disagreement, between the two cases than initially meets the eye.”

For starters, according to the Sixth Circuit, “[t]he procedural settings of the two cases differ.” Second, “[t]he two claimants’ theories of constitutional protection also are miles apart.” Third, whereas “[i]n Keeton, the district court made preliminary fact findings after holding a[n evidentiary] hearing,” in Ward, there were “no trial-level fact findings” and Ward received “the benefit of all reasonable factual inferences in challenging the summary-judgment decision entered against her.” Fourth and finally, the Sixth Circuit draws a sharp factual distinction in Ward:

Nothing in Keeton indicates that Augusta State applied the prohibition on imposing a counselor’s values on the client in anything but an even-handed manner. Not so here, as the code of ethics, counseling norms, even the university’s own practices, seem to permit the one thing Ward sought [but was denied]: a referral.

The Sixth Circuit does, however, acknowledge that the two decisions “share the same essential framework and reasoning,” explaining,

They both apply Hazelwood to curricular speech at the university level, and they both show that the even-handed enforcement of a neutral policy is likely to steer clear of the First Amendment's free-speech and free-exercise protections. Both decisions also are consistent with Christian Legal Society, which considered whether a Christian organization at a law school could insist that its members adhere to certain faith-based codes of conduct. The Court held that the law school's anti­discrimination policy, requiring registered student organizations to accept all comers, did not violate the First Amendment on its face, yet it remanded the case to determine whether the school selectively enforced the policy against some organizations but not others. While Keeton involved Augusta State's across-the-board application of an ethical rule that prohibits counselors from imposing their values on clients, today's case reveals evidence that Eastern Michigan University selectively enforced a no-referral policy against Ward.

Case Page: Blue Mountain School District v. Snyder

Jurisdiction & Case Number

• U.S. District Court for the Middle District of Pennsylvania: No. 3:07cv585.
• U.S. Court of Appeals for the Third Circuit: No. 08-4138.

Current Status

Following the Third Circuit's en banc decisions in both this case and Layshock, the appellants in Layshock merged their petition to the Supreme Court with the appellants in Blue Mountain School District v. Snyder. The petition to the Supreme Court was filed as Blue Mountain School District v. Snyder, and is presently pending before the Supreme Court. Respondents' response is due on Friday, December 16, 2011. The Supreme Court will hold its first conference following this deadline on Friday, January 6, 2012, in which it may decide whether or not to hear this case.

Description

[Note: The following case description is reproduced on this blog with permission from the Citizen Media Law Project (http://www.citmedialaw.org) pursuant to its Creative Commons Attribution-NonCommercial-ShareAlike 3.0 License. The information contained in this entry is based on court filings and other informational sources that may contain unproven allegations made by the parties. The truthfulness and accuracy of such information is likely to be in dispute.]

In March 2007, the Blue Mountain School District suspended two eighth-grade students after they created a fake MySpace profile for James McGonigle, principal of the Blue Mountain Middle School in Pennsylvania. The MySpace page did not identify McGonigle by name, but it included his picture from the school district's website and identified the person depicted as a "principal." According to court documents, the profile characterized the principal as a sex-obsessed pedophile, and it was laced with profanity and other negative comments about McGonigle and his family.

The school determined that, based on the creation of the fake profile, the two students had violated the school discipline code, which prohibits making false accusations against school staff members. It also determined that the students violated the school's computer use policy, which informs students that they cannot use copyrighted material without permission, by obtaining McGonigle's photo from the school district's website. As a result, the school suspended the two students for ten days out-of-school.

One of the students, going by the initials "J.S.", sued the school district, McMonigle, and the school district superintendent for violating her First Amendment rights. She argued, among other things, that the school could not constitutionally punish her for out-0f-school speech that did not cause a disruption of classes or school administration. The court denied her request for a temporary restraining order and preliminary injunction, and later granted summary judgment to the school district, ruling that the school could discipline lewd and vulgar off-campus speech that had an effect on campus, even if this effect didn't amount to a "substantial disruption" under Tinker v. Des Moines Ind. Sch. Dist., 393 U.S. 503 (1969).

The Third Circuit reheard J.S.'s appeal en banc, and ultimately ruled in his favor. The school district has filed a petition for a writ of certiorari from the Supreme Court, which remains pending as of November 27, 2011.

SOURCE: Citizen Media Law Project (http://www.citmedialaw.org).

Parties & Counsel

• Plaintiffs/Appellants: Jill Snyder, a minor, by and through her parents, Terry Snyder and Steven Snyder, individually and on behalf of their daughter.
• Counsel: Mary Catherine Roper and Witold J. Walczak, ACLU of Pennsylvania; Deborah Gordon, Education Law Center of Pennsylvania; Mary Kohart, A. Kristina Littman, Tara S. Sarosiek, and Meredith Nissen, Drinker, Biddle & Reath LLP.

• Defendants/Appellees: Blue Mountain School District; Dr. Joyce E. Romberger, Superintendent, Blue Mountain School District; and James S. McGonigle, Principal, Blue Mountain Middle School, both in their official and individual capacities.
• Counsel: Ellis H. Katz, Thomas J. Nickels, Jonathan P. Riba, Sweet, Stevens, Katz & Williams LLP; David T. Goldberg, Donahue & Goldberg LLP; James E. Ryan and Daniel R. Ortiz, UVA Supreme Court Litigation Clinic; Anthony G. Sanchez, Andrews & Price LLC; Mark T. Stancil, Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP; John P. Elwood, Vinson & Elkins LLP.

SOURCE: Citizen Media Law Project (http://www.citmedialaw.org).

Briefs & Documents

• J.S.'s Comlaint in Federal Court (3/28/07) (click here)
• M.D. Penn. Memorandum Denying J.S.'s Request for Temporary Restraining Order and Preliminary Injunction (3/29/07) (Munley, J.) (click here)
• Blue Mountain et al. Brief in Support of Summary Judgment (12/10/07) (click here)
• J.S. Brief in Support of Summary Judgment (12/10/07) (click here)
• M.D. Penn. Memorandum Granting Summary Judgment to Blue Mountain School District (9/11/08) (Munley, J.) (click here)
• J.S.'s Notice of Appeal (10/6/08) (click here)
• J.S.'s Appellate Brief to the Third Circuit (2/19/09) (click here)
• Third Circuit Order for En Banc Rehearing of J.S.'s Appeal (4/9/10) (Scirica, CJ.) (click here)
• Third Circuit Opinion (6/13/11) (en banc) (click here)
• Blue Mountain School District's Petition for a Writ of Certiorari to the U.S. Supreme Court (10/14/11)(click here)

SOURCE: Citizen Media Law Project (http://www.citmedialaw.org).

Case Updates

• 2/4/10 - The Third Circuit affirmed the lower court's decision.
• 4/9/10 - The Third Circuit granted J.S.'s petition for an en banc rehearing of her appeal.
• 10/14/11 - Blue Mountain School District's Petition for a Writ of Certiorari to the U.S. Supreme Court (click here).

SOURCE: Citizen Media Law Project (http://www.citmedialaw.org).

Related Links

• WSJ Law Blog: On Students, MySpace and the First Amendment
• WSJ Law Blog: Cyberbullying & the Law: Free Speech's Next Frontier
• Law.com: 3rd Circuit Mulls Discipline for Hoax Web Pages
• AP: Rulings cloud issue of school MySpace suspensions
• eSchool News: Lawsuits test free speech in internet era

SOURCE: Citizen Media Law Project (http://www.citmedialaw.org).

*Last updated on 11/27/11

Case Page: Doninger v. Niehoff

Jurisdiction & Case Number

• Connecticut Superior Court: No. 520
• U.S. District Court for the District of Connecticut: No. 3:07CV01129 (MRK)
• U.S. Court of Appeals for the Second Circuit: No. 07-3885-cv (2d Cir.)

Current Status

Petition for writ of certiorari denied by U.S. Supreme Court. (10/31/11)

Description

[Note: The following case description is reproduced on this blog with permission from the Citizen Media Law Project (http://www.citmedialaw.org) pursuant to its Creative Commons Attribution-NonCommercial-ShareAlike 3.0 License. The information contained in this entry is based on court filings and other informational sources that may contain unproven allegations made by the parties. The truthfulness and accuracy of such information is likely to be in dispute.]

Administrators barred a Connecticut high school student from running in a student election after the student critized admininstrators online for their handling of a student festival. In the spring of 2007, Jamfest, a yearly music festival at a Connecticut high school, experienced a series of planning setbacks that threatened to postpone or cancel the event. When Avery Doninger – a junior and incumbent class secretary – was unable to meet with the school's principal, Karissa Niehoff, to talk about the event she and three other students sent a mass e-mail asking members of the community to speak to administrators about putting the event back on schedule. Doninger and Niehoff later had a discussion in the hallway, during which she says Niehoff informed her that the event had been cancelled.

That night, Doninger wrote a Livejournal blog post criticizing the school officials' handling of the issue. In the post, she called the school officials “douchebags” and asked her fellow students and their parents to complain to school superintendent Schwartz in order “to piss [Schwartz] off more” than the mass e-mail had.

In response to her blog post, the school barred Doninger from running for reelection as Class Secretary for her senior year. At the class election, school officials prevented a group of students from wearing “Team Avery” t-shirts. According to school principal Niehoff, the t-shirt ban was intended to prevent electioneering by candidates and supporters who could afford such merchandise.

Avery's mother, Lauren Doninger, attempted to convince school officials to consider alternative forms of punishment. She also tried to establish whether or not the incident would appear in Avery's school record. When a resolution could not be reached on these issues, the Doningers filed suit in Connecticut state court against Niehoff and Schwartz. The defendants removed the case to the federal court in Connecticut.

The Doningers' complaint for injunctive relief alleged violations of Connecticut free speech laws, intentional infliction of emotional distress, and violations of Avery's constitutional rights to free speech, due process, and equal protection under the Civil Rights Act (Title 42 U.S.C. § 1983, 1988). The complaint sought to enjoin the defendants on seven different counts. All told, the complaint would prevent defendants from installing anyone as Class Secretary until an election was held with Avery on the ballot; from maintaining negative remarks related to this incident in Avery's school record; from punishing students for wearing t-shirts bearing slogans related to the incident; from preventing Avery from addressing her class in assemblies; and from punishing or intimidating Avery, her mother, or any students who subsequently might vote for Avery in the new election. 

The district court found that Avery met the initial “irreparable harm” standard required for a preliminary injunction through her showing that her speech may have been chilled because she voluntarily chose not to wear a "Team Avery" t-shirt at school, limited her e-mail and blog communications to prevent a similar incident, and restricted her Livejournal account to “private.”

However, the court denied the Doningers' motion, finding that she had not demonstrated a likelihood of success on the merits as to her constitutional claims. In addressing the Doningers' claims, the court divided its discussion into First Amendment and Equal Protection issues.

The court determined that Avery's blog post constituted on-campus speech for First Amendment purposes, regardless of the fact that she wrote it off campus, because "the blog was related to school issues, and it was reasonably foreseeable that other LMHS students would view the blog and that school administrators would become aware of it." Slip op. at 28. The court then noted that school administrators have the right, in certain situations, to restrict on-campus speech to promote school-related goals. The court also ruled that Avery does not have a First Amendment right to run for voluntary office.

Considering these two concepts together, the court determined that the defendants may have had the right to prevent Avery from running for office as punishment for her statements in order to promote civility in school functions, thus making an injunction inappropriate. The court had more serious misgivings about the denial of the right to wear “Team Avery” t-shirts, which it related to the black armbands in the famous Tinker school speech case. However, it decided to reserve that issue until the parties have had a chance to develop the record as the case goes forward.

The court denied the injunction as to the Doningers' Equal Protection claims because Avery's blog post made her situation unique compared to the other students involved.

SOURCE: Citizen Media Law Project (http://www.citmedialaw.org).

Briefs and Documents

• Doninger's Complaint for Injunctive Relief (7/16/07) (click here)
• Doninger's Memorandum of Law in Support of Plaintiff's Application for Temporary Injunction (7/16/07) (click here)
• Niehoff's Memorandum of Law in Opposition to Plaintiff's Motion for Preliminary Injunction (8/20/07) (click here)
• Brief of Amicus Curiae, ACLU of Connecticut, in Support of Plaintiff's Motion for a TRO/Preliminary Injunction (8/21/07) (click here)
• D. Conn. Memorandum of Decision Denying Plaintiff's Motion for Injunctive Relief (8/31/07) (click here) (Kravitz, J.)
• Plaintiff's Amended Complaint (10/12/07) (click here)
• Doninger's Brief to the Second Circuit (10/24/07) (click here)
• Second Circuit Opinion (5/29/08) (Sotomayor, Livingston, & Preska, JJ.) (click here)
• Doninger's Memorandum in Support of Plaintiff's Motion for Partial Summary Judgement (7/18/09) (click here)
• Niehoff's Memorandum of Law in Support of Defendants' Motion for Summary Judgment (7/18/08) (click here)
• Niehoff's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment (8/20/08) (click here)
• Doninger's Memorandum of Law in Objection to Defendants' Motion for Summary Judgment (8/20/08) (click here)
• D. Conn. Memorandum of Decision (1/15/09) (Kravitz, J.) (click here)
• Niehoff's Motion for Reconsideration Re: Ruling on Motion for Summary Judgment (1/29/09) (click here)
• D. Conn. Ruling and Order (3/19/09) (Kravitz, J.) (click here)
• Niehoff's Notice of Appeal (4/7/09) (click here)
• Doninger's Notice of Appeal (4/16/09) (click here)
• Doninger's Request for Certification to Appeal (5/12/09) (click here)
• Niehoff's Motion on Consent for Stay of Trial (5/14/09) (click here)
• D. Conn. Ruling and Order (5/14/09) (click here)
• Second Circuit Opinion (4/25/11) (Kearse, Cabranes, & Livingston, JJ.) (click here)

SOURCE: Citizen Media Law Project (http://www.citmedialaw.org).

Case Updates

• 5/29/2008 - The U.S. Court of the Appeals for the Second Circuit affirmed the district court's decision using similar reasoning.
• 11/12/2008 - The district court heard argument on the defense's motion for summary judgment.
• 1/15/2009 - The district court grants the defendants' motion for summary judgment in part and denies the plaintiff's motion for partial summary judgment.
• 1/23/2009 - District court trial set to begin June 4, 2009.
• 3/19/2009 - District court denies both the plaintiff's and the defendants' motions to reconsider the rulings on their summary judgment motions.
• 4/7/2009 - Defendants appeal the district court's ruling on its summary judgment motion to the United States Court of Appeals for the Second Circuit.
• 4/16/2009 - Plaintiff appeals the district court's ruling on its summary judgment motion to the United States Court of Appeals for the Second Circuit.
• 5/14/2009 - The district court grants the plaintiff's motion requesting that the district court certify as final judgment its ruling on the defendants' motion for summary judgment. Defendants filemotion for stay of trial to allow time for their appeal to the Second Circuit.
• 4/25/2011 - The U.S. Court of Appeals for the Second Circuit decides in favor of the principal and superintendent on the issue of qualified immunity, affirming those portions of the district court's summary judgment ruling that were in favor of the principal and superintendent and reversing the remainder.
• 10/31/2011 - The U.S. Supreme Court declined to grant Doninger's petition for writ of certiorari.

SOURCE: Citizen Media Law Project (http://www.citmedialaw.org).

Related Links

• Prawfsblog post: Students should be seen, not heard
• Republican American article: Mom Defends Daughter's Right to Blog Speech
• Justia.com: Federal District Court Filings & Dockets
• First Amendment Center: 2nd Circuit: School can punish teen for online criticism
• Ars Technica: "Douchebag" blog post costs student her student council seat (discussing the Second Circuit appeal)
• CMLP Blog: Another Victory for the "Douchebags"
• Student Press Law Center: PRESS RELEASE: SPLC Statement on Today's Decision in Doninger v. Niehoff

SOURCE: Citizen Media Law Project (http://www.citmedialaw.org).

Circuits Split on Student Cyberspeech

In 1969’s Tinker v. Des Moines Independent School District, the Supreme Court declared that students do not shed their constitutional rights to freedom of speech at the schoolhouse gates. While the Court's memorable rhetoric recognizes the First Amendment’s application to student speech, Tinker also recognizes that school authorities may regulate student speech without offending the First Amendment as long as they have “reason to anticipate [the speech will] substantially interfere with the work of the school or impinge upon the rights of other students.” For more than four decades now, lower courts have applied this “substantial-disruption test” to determine whether various forms of student expression fall within a public school’s authority to regulate. 

While the circuits agree that the substantial-disruption test applies to student speech that originates on campus, they are split on the question of whether this test governs student speech that originates off campus. This is particularly true in cases where students have expressed themselves online, commonly referred to as "cyberspeech," from a computer at home or otherwise off campus.

For example, in her petition for writ of certiorari in Doninger v. Niehoff, Avery Doninger--a student punished for her off-campus cyberspeech--recently requested that the Supreme Court resolve the “division between the Second and Third Circuit Court of Appeals [concerning] whether, consistent with the [F]irst [A]mendment, school authorities may punish internet speech by [students] when they are posting messages on the internet from their own home on matters of some general public concern, even if that concern involves school issues.”

Angry that her school was considering cancelling its annual “JamFest,” Avery Doninger posted a comment on her blog from her home computer calling school officials “douchebags” and encouraging readers to flood the administration with complaints. The school responded by prohibiting Avery from running for office in a student election. Applying Tinker’s substantial-disruption test, the Second Circuit held that Avery’s online speech “foreseeably create[d] a risk of substantial disruption within the school environment” and therefore fell within the school’s authority to regulate. On October 31, 2011, however, the Supreme Court declined to grant certiorari in Doninger v. Niehoff.

By contrast, the Third Circuit recently issued two decisions en banc--Hermitage School District v. Layshock and Blue Mountain School District v. J.S.--in which the court ruled in the student's favor. Both cases involved students who were punished by their respective schools for creating fake profiles lampooning their principals. The crude profiles, however, were created from computers off campus. Under the substantial-disruption test, the Third Circuit found that neither school could show that its administrators reasonably forecasted a substantial disruption because of the fake profiles. Therefore, unlike the Second Circuit in Doninger, the Third Circuit held that the schools in both cases violated the students' First Amendment rights since the speech originated off campus and failed the substantial-disruption test.

The parties have since combined their actions into a single petition to the Supreme Court, Blue Mountain School District v. J.S., which is still pending as of November 25, 2011. A student whose punishment was recently upheld by the Fourth Circuit for creating a MySpace page about a classmate on which lewd, defamatory remarks were posted has also requested the Supreme Court's review of the school's authority over off-campus cyberspeech by students. This case, Kowalski v. Berkeley County Schools, is also presently awaiting the Court's grant or denial of certioriari.

First Amendment scholar David L. Hudson Jr. has stated his belief that "[t]he sheer number of these cases percolating in the lower courts may make the Blue Mountain petition appealing enough for the Court to address the contours of student online speech and explain just how far school official jurisdiction extends." (See here.) Considering the fact that the Supreme Court has only decided three student-speech cases over the last four decades since Tinker,  countless judges, scholars, educators, and students hope the Court will take this opportunity to bring some much-needed clarity to this issue that has left the circuits split.

Case Pages

• Doninger v. Niehoff
• Blue Mountain School District v. J.S.
• Hermitage School District v. Layshock
  
• Kowalski v. Berkeley County Schools