I’m more inclined to agree with the first post here, but StudentActivism.net makes a good point that this case was about an injunction, not about the merits of the speech itself. Still, I can’t see how anyone could side with the high school on any issue related to this case.

Sotomayor’s Bad 1st Amendment Decision Should Disqualify Her

Paul Levinson

MAY 2, 2009 6:11PM

According to Sam Stein in the Huffington Post, Sonia Sotomayor is “the odds-on favorite” to be chosen by Barack Obama to fill retiring Justice David Souter’s seat on the U.S. Supreme Court. She now sits on the U.S. Court of Appeals of the Second Circuit in New York City. She is regularly described as liberal and a judicial activist – fine in my book – and it would good to have a first Hispanic and another woman on the Supreme Court.

But she has one major, very bad decision on free speech and press to her discredit, which should give everyone who values these freedoms in our society serious cause for concern about Sotomayor’s possible nomination to the High Court.

The decision came from Sotomayor’s Second Circuit Court last May, regarding Lewis Mills High School student Avery Doninger. While running for Senior Class Secretary, Ms. Doninger found reason to object to the school’s cancellation of a “jamfest” event, and characterized those who scotched the event as “douchebags” on her off-campus LiveJournal blog (she also characterized a school official in that same blog posting as getting “pissed off”). The school officials, in turn, took umbrage, prohibited Avery from running for Class Secretary, and disregarded the plurality of votes she received, anyway, as a write-in candidate. Avery sued the school officials, and the Federal District Court supported the school. Avery appealed to Sotomayor’s Second Circuit Court.

After acknowledging the Supreme Court’s 1969 Tinker decision, which held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” Sotomayor’s Court proceeded to affirm the District Court’s ruling – that is, Sonia Sotomayor and her colleague justices upheld the high school’s right to punish Doninger for her off-campus speech. Their reasoning was that schools have an obligation to impart to their students “shared values,” which include not only the importance of free expression but a “proper respect for authority”.

“Proper respect for authority” … is this what our democratic society and freedom is based upon? Last time I checked, I thought our democracy and freedom were predicated on the principle that all people have a right to express their opinions, which must certainly include disrespect for authority, if actions by the authority – such as canceling a school event such as “jamfest” – are at issue.

Or as Constitutional scholar and law-professor Jonathan Turley put it about this decision last year, “The continual expansion of the authority of school officials over student speech teaches a foul lesson to these future citizens. I would prefer some obnoxious speech than teaching students that they must please government officials if they want special benefits or opportunities.”

It is not exaggerating events to say that our society hangs in the balance with the appointment of Souter’s replacement to the Supreme Court. A powerful, corrective revolution is underway, with Obama’s election as President, and the Democrats about to obtain a 60-seat majority in the U.S. Senate. But an adverse Supreme Court can stop and undo a lot of that.

David Souter was a surprise to the Republicans who appointed him and worked for his confirmation. His vote made a difference on the side of progressive and humane issues in many a Supreme Court decision.

We cannot afford or risk a Souter in reverse with this new appointment – a Justice who seems to have a progressive record, but who turns out to have an insufficient passion for protecting and strengthening the freedoms that make our country great.

I hope Sonia Sotomayor’s name is taken off the list.


Sotomayor’s Student Free Speech Ruling: The Nitty Gritty

May 15, 2009 in Administration, Campus Protests, Civil Liberties, High School, Politics

May 26 update: The AP is reporting that Obama has picked Sotomayor for the Supreme Court. I’ve got a new post up this morning exploring her views on race and gender in the judiciary.

In August 2007 Judge Sonia Sotomayor sat on a panel that ruled on an appeal in a high school free speech case, Doninger v. Niehoff.

The ruling in that case has come under heavy criticism from some civil libertarians, but though it’s not good, I’m not convinced it’s as bad as some people have made out. Here’s the deal:

Avery Doninger was a member of the student council of Lewis Mills High School in Connecticut. In the spring of 2007, the student council and the LMHS administration butted heads over a school concert called Jamfest, which administrators were not allowing to go forward on its originally scheduled date.

At one point in the dispute Doninger put up a blogpost saying that the principal had canceled the concert because she was “pissed off” about student pressure. Doninger called the administration “douchebags” for canceling Jamfest, and urged students to complain to the principal and “piss her off more.”

According to the principal, however, the concert had never been canceled, and in fact the day after Doninger put up her post, students and administrators reached an agreement to reschedule it.

The principal learned of Doninger’s blogpost two weeks after it went up, and punished Doninger for posting it by not allowing her to run for Senior Class Secretary. She gave four reasons: Doninger had not followed proper procedures for resolving disagreements with the administration, the post’s language had been “vulgar,” claims in the post had been inaccurate, and the exhortation to other students to “piss her off more” had been inappropriate.

Doninger ran as a write-in candidate in the election, and won, but was not allowed to take office. She and her parents then challenged that decision in court, asking for an injunction that would allow her to be seated as class secretary.

A federal district court denied that request, saying that Doninger did not have a strong enough likelihood of winning her case at trial. In making that ruling, the court accepted the principal’s account of several factual matters, rejecting Doninger’s claims.

This is where Sotomayor enters the picture, sitting as a member of a three-judge appeals court panel.

To win on appeal, Doninger would have had to convince the court that she would have “a clear or substantial likelihood of success” at trial on the underlying issues. She wasn’t able to, and the appeals court unanimously affirmed the district court’s ruling.

The Sotomayor panel found that calling administrators “douchebags” and encouraging students to “piss off” the principal was “the sort of language that may properly be prohibited in schools.” It also found that because that language created “a risk of substantial disruption within the school environment,” it could properly be the subject of discipline even though it occurred off campus.

In reaching this second conclusion, the court relied on the district court’s finding that Doninger’s claim that Jamfest had been cancelled was “at best misleading and at worst false.” By spreading inaccurate information in an inflammatory manner, the court said, Doninger had disrupted not just the school, but also “the proper operation of LMHS’s student government.”

The ruling thus found that the district court had not overstepped its authority in denying the injunction. It did not, however, endorse the administration’s decision to strip Doninger of the right to run for student government office. “We are not called upon,” the judges wrote, “to decide whether the school officials in this case exercised their discretion wisely.”

So what’s the takeaway?

The court found that Doninger had disrupted efforts to resolve the dispute between the student council and the administration by spreading inaccurate and inflammatory information, and it grounded its decision in that finding. Given Supreme Court precedent in this area, this doesn’t strike me as a completely wrongheaded conclusion. I think that the Supreme Court has decided a lot of its school free speech cases wrongly, but that’s not for an appellate court to say – they are obligated to follow the Supremes’ guidance where they can. So I hesitate to say that the core ruling here was wrong.

There are aspects of the decision that do trouble me, though. I think it’s wrong, even under current Supreme Court precedent, to say that the Constitution does not protect a high school student’s right to call her principal a “douchebag,” or to encourage other students to engage in activities that are intended to “piss her off.” I also think that the court adopted a cramped view of what constitutes “good citizenship,” failing to engage with the idea that oppositional, aggressive defenses of one’s interests may at times be appropriate – even in a school setting.

But this was a unanimous decision rejecting a motion for an injunction, and it was not a decision that Sotomayor wrote. Although she obviously endorsed the ruling by voting for it, I don’t think it’s necessarily useful to act as if she bears responsiblilty for every detail and nuance of the decision.

I’m left a little uneasy by this new piece of information, but not much more than a little, and I don’t agree with Paul Levinson that it, on its own, is disqualifying.

One Comment

  1. Yeah, I was definitely disappointed about that. From what I’ve heard about her, which is admittedly little despite the media flurry, she seems like a great candidate for SCOTUS, except for this thing. Oh, well. :

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