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Second Circuit Permits High School Bullying -- By Administrators

Let's say that a high school student disses a popular cheerleader on her personal blog.  Learning of the insults, the cheerleader rallies her buddies at school to make life hell for the blogging student by blocking her path in the hallways so that she can't get to the cafeteria in time for lunch or intruding on her while she's using the restrooms.  No doubt, most of us would express outrage at this kind of retaliatory schoolyard bullying. 

But as high school student Avery Doninger has learned the hard way, when it comes to bullying by administrators, different standards apply and nothing -- not even parental intervention or the power of the First Amendment -- offer any protection.

For those who haven't followed this story as closely, here's the background. Upset by the high school administration's decision to cancel a band contest, Connecticut high school senior Avery Doninger referred to the administrators as "douchebags" on her private blog. The concert was later rescheduled.  Meanwhile, Doninger's post went undiscovered until two weeks later when school superintendent Paula Schwartz's son stumbled upon it. At that time, school officials ordered Doninger to apologize to Schwartz and withdraw from seeking re-election as class secretary. Doninger refused to withdraw, so administrators forced her from the election. Even so, she won as a write-in candidate, but officials barred her from serving.

Doninger and her mother sued, arguing that the school's action violated Doninger's First Amendment rights and urging the court to enjoin officials from preventing Doninger from serving as secretary.  Doninger lost at the district court level and yesterday, the Second Circuit affirmed. The Second Circuit found that even though Doninger's conduct took place outside the school, it was forseeable that the post would reach the school and create a risk of disruption. Thus, the court concluded that the school's interest in maintaining order and discipline trumped Doninger's First Amendment rights to express her position at her blog.

I'm troubled by the "potential risk of disruption" standard. Indeed, under these facts, it's impossible to find any potential risk of disruption, since the blog post went undiscovered for two weeks! It wasn't until administrators learned of the post and barred Doninger from running for office that any disruption (if you can call it that) in the form of students writing Doninger's name in on the ballot in their own act of protest took place.

Like me, Scott Greenfield is also troubled by the broad potential for disruption standard. And he also lambastes these administrators for failing to recognize that Doninger's blog post, an act of civil disobedience, represents the type of citizenship standards that schools should reward, not punish.   

I've always believed that standing by silently without intervening as bullies taunt their targets makes us as culpable as the bullies themselves. By that standard, the Second Circuit just may be the biggest bully of all. 

Posted by Carolyn Elefant on May 30, 2008 at 11:36 AM | Permalink | Comments (7)


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