The Right To Dissent

originally published in the Hartford Advocate September 20, 2007

The Right To Dissent

School officials clamp down on student blogger

By Jennifer Abel

Food for thought and mental indigestion: even though you've committed no crime, government agents whose six-figure salaries come out of your tax dollars can make you spend most of your waking hours in a lockdown facility. When you're not there, they can still regulate what you write, say and do. And when election time rolls around, if these government agents don't like who you voted for they can decide your ballots just don't count. Best of all, they'll tell you with straight faces that they're teaching you how to be a free citizen of a democracy.

So far the above paragraph only applies to students enrolled in Connecticut's Region 10 school district. But if Region 10's administration gets its way, it will eventually apply to every public-school student in America.

Get this: a few months ago Avery Doninger, a Burlington resident who is now a senior at Lewis Mills High School in that town, sat at home and wrote a Livejournal blog entry that referred to unnamed school administrators by the misspelled insult "douchbags."

So Lewis Mills principal Karissa Niehoff, with the approval of Region 10 superintendent Paula Schwartz, removed Doninger from her elected position as secretary of the class of 2008. And a month later, when new class elections were held, they wouldn't allow her name on the ballot. Though Doninger was still elected in a write-in campaign, Niehoff and Schwartz chose not to count those votes, rationalizing that referring to administrators as feminine hygiene supplies was inappropriate for a Class Leader.

Had Doninger said this at school, or directly to an administrator, they'd probably be right. But can public schools dictate students' off-campus, non-illegal behavior all throughout the school year? If the Doninger case becomes a binding precedent, the answer will be "yes."


It all started last April, after Doninger and some classmates had spent several months trying to organize an at-school student music festival called "Jamfest."

"I'm a student council representative and I was helping to organize it," Doninger said. But the kids couldn't use the school auditorium to host the event. The giant building that houses the high school, Har-Bur Middle School (a punny abbreviation for Harwinton and Burlington, the two towns of Region 10) and the district administration offices has been undergoing construction for well over a year.

"They demolished the [old] auditorium," Doninger said. And the new auditorium always had problems, said the administration: audio, lighting, something. So "they kept pushing back the date ... to April 28."

Then that date was put on hold, apparently because no adult could be found to work the sound system. The administration didn't want to entrust the task to a teenager even though, according to Doninger, "there were kids who knew how — one whose job is to do it in Torrington." Also, "we were told it was 'the taxpayers' auditorium' ... the school owned the old auditorium, but the new one is owned by Region 10, the whole community uses it."

So Doninger and her friends decided to go straight to the taxpayers and ask permission to use their collective auditorium.

Doninger's mother Lauren described what happened next. "[Doninger and some classmates] went to the school computer lab and sent a mass e-mail to taxpayers, asking them to tell the central office to let them" use the auditorium. And "it had an effect. People started calling [superintendent] Schwartz's office."


If you check the Lewis Mills Web site you'll find the school's list of "Student Expectations," which include personal and academic goals like developing an "awareness of rules and responsibilities of citizens in a democratic society."

So Avery Doninger and her friends did the sort of thing civics textbooks gush about: wanting permission to use property collectively owned by the taxpayers, the kids asked them directly, and received overwhelming support. The people have spoken! Thus did Superintendent Schwartz, acting in her capacity as a well-paid public servant, cleave to public opinion and allow Jamfest to proceed, and everyone involved lived happily ever after.

Just kidding. If it happened that way you wouldn't be reading about it here. What really happened, according to Doninger, was this: "The next day Ms. Niehoff said 'I need to talk to you ... as of now Jamfest is cancelled' ... she said, 'Mrs. Schwartz is really upset, getting all these calls and e-mails.'"

The Advocate couldn't talk to anyone in the administration (that's usually the case when there's pending litigation) to ask their side of the story. So let's continue with Doninger's: the cancellation of Jamfest left her in a vile mood, so she went home and made the infamous "douchbag" blog post. As a result, she was removed from the class secretary position she already held for her junior year, and forbidden from running again as a senior.

The Doningers decided to go to court, and hired attorney Jon Schoenhorn to represent them. "We just wanted the school to count the votes for Avery and reinstate her as class secretary," said Lauren Doninger.

But on Aug. 31, Judge Mark Kravitz ruled with the administration, reasoning that since Doninger wrote something on a Web site that could be read by people at school, that's essentially the same as if she'd stood up in class and shouted it.

"There's three lines of cases that allow restrictions on student's first amendment rights," says Schoenhorn. "One ... developed in the '80s, and had to do with indecent, vulgar or obscene language in school. You can't yell 'fuck you' in the hallways. That is the standard the judge has applied to the Internet."


Free speech isn't the only right granted by the first amendment, which contains other rights that schools can arguably curtail. For example, Doninger's right to freedom of religion probably wouldn't allow her to give in-school speeches exhorting classmates to convert. But suppose she wrote such an essay on her blog. If Kravitz's ruling stands, wouldn't it be possible for school administrators to punish students for religious commentary posted online, too?

"It could," says Ethel Sorokin, a retired attorney who's now president of the Center for First Amendment Rights in Hartford. "Carrying the authority of the school so far out of the school is inappropriate ... schools are supposed to teach citizenship, but students aren't allowed to behave like citizens ... schools should allow students to dissent."

Beth Duffy, chair of the Region 10 Board of Education, takes a different view. Though she wouldn't speak to the press, at a school board meeting on Sept. 10 she handed out a release telling the school's side of the story. "Despite what has been reported in the press ... Ms. Niehoff and Mrs. Schwartz did not infringe on Avery Doninger's First Amendment rights ... citing Constitutional rights as protection for bad behavior does that incredible document a grave disservice."

Schoenhorn countered. "Obviously, whatever document they're talking about isn't the U.S. Constitution," said Schoenhorn. "Are they talking about Azerbaijan?"

"Free speech is [to protect] what we dislike, not what we like," Sorokin added.

So which should prevail: Doninger's Constitutional right to be critical of authority, or the administration's presumptive right not to have its authority criticized? Schoenhorn has filed an appeal, but doesn't yet know when it will be heard.