642 F.3d 334 (2nd Cir. 2011), 09-1452-cv (L), Doninger v. Niehoff

Docket Nº:09-1452-cv (L), 09-1601-cv (XAP), 09-2261-cv (CON).
Citation:642 F.3d 334
Opinion Judge:DEBRA ANN LIVINGSTON, Circuit Judge:
Party Name:Avery DONINGER, Plaintiff-Appellee-Cross-Appellant, v. Karissa NIEHOFF, Paula Schwartz, Defendants-Appellants-Cross-Appellees.
Attorney:Jon L. Schoenhorn, Jon L. Schoenhorn & Associates, LLC, Hartford, CT (Sara J. Packman, on the brief), for Plaintiff-Appellee-Cross-Appellant. Thomas R. Gerarde, Howd & Ludorf, LLC, Hartford, CT (Beatrice S. Jordan, on the brief), for Defendants-Appellants-Cross-Appellees.
Judge Panel:Before: KEARSE, CABRANES, and LIVINGSTON, Circuit Judges.
Case Date:April 25, 2011
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 334

642 F.3d 334 (2nd Cir. 2011)

Avery DONINGER, Plaintiff-Appellee-Cross-Appellant,


Karissa NIEHOFF, Paula Schwartz, Defendants-Appellants-Cross-Appellees.

Nos. 09-1452-cv (L), 09-1601-cv (XAP), 09-2261-cv (CON).

United States Court of Appeals, Second Circuit.

April 25, 2011

Argued: Jan. 12, 2010.

Page 335

[Copyrighted Material Omitted]

Page 336

[Copyrighted Material Omitted]

Page 337

Jon L. Schoenhorn, Jon L. Schoenhorn & Associates, LLC, Hartford, CT (Sara J. Packman, on the brief), for Plaintiff-Appellee-Cross-Appellant.

Thomas R. Gerarde, Howd & Ludorf, LLC, Hartford, CT (Beatrice S. Jordan, on the brief), for Defendants-Appellants-Cross-Appellees.

Before: KEARSE, CABRANES, and LIVINGSTON, Circuit Judges.

Page 338


We are once again called upon to consider the circumstances in which school administrators may discipline students for speech relating directly to the affairs of the school without running afoul of the First Amendment. More precisely, we must determine if the defendant-school-administrators before us are entitled to qualified immunity on the plaintiff-student's claims that they violated her First Amendment rights by (1) preventing her from running for Senior Class Secretary as a direct consequence of her off-campus internet speech, and (2) prohibiting her from wearing a homemade printed t-shirt at a subsequent school assembly.

Plaintiff-Appellee-Cross-Appellant Avery Doninger (" Doninger" or " Plaintiff" ) appeals from a January 15, 2009, decision of the United States District Court for the District of Connecticut (Kravitz, J. )— as well as a March 19, 2009, denial of a motion for reconsideration— granting partial summary judgment to Defendants-Appellants-Cross-Appellees Karissa Niehoff, principal at Lewis S. Mills High School (" LMHS" or " the School" ) in Burlington, Connecticut, and Paula Schwartz, superintendent of the school district in which LMHS is located (together, " Defendants" ), on the claim that Defendants violated Plaintiff's First Amendment rights when they prohibited her from running for Senior Class Secretary in response to a blog entry that Doninger posted from her home during non-school hours.1 Because we conclude that the asserted First Amendment right at issue was not clearly established, we affirm the district court's decision on the ground that Defendants were entitled to qualified immunity. Doninger also appeals the district court's grant of summary judgment to Defendants on her Equal Protection selective-enforcement claim, its sua sponte dismissal without prejudice of her claims under the Connecticut state constitution, and the court's determination, on her motion for reconsideration, that she failed properly to assert a claim pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).2 We affirm the district court's determination on these claims as well.

Defendants appeal the district court's partial denial of their motion for summary judgment, asserting that they are entitled to qualified immunity on Doninger's remaining

Page 339

First Amendment claim— a claim alleging that her rights were violated when Niehoff prohibited her from displaying in a school assembly a homemade t-shirt emblazoned with " Team Avery" on the front and " Support LSM Freedom of Speech" on the back. We reverse the district court on the basis that Defendants are entitled to qualified immunity on this claim as well, since, given the legal framework and the particular factual circumstances of this case, the rights at issue were not clearly established.


I. Factual Background

At the time of the events relevant to the instant dispute, Doninger was both on the Student Council and serving as the Junior Class Secretary at LMHS, a public high school in Burlington. The school district had in place a policy regarding eligibility to represent its schools in such positions. The district's policy stated:

All students elected to student offices, or who represent their schools in extracurricular activities, shall have and maintain good citizenship records. Any student who does not maintain a good citizenship record shall not be allowed to represent fellow students nor the schools for a period of time recommended by the student's principal, but in no case, except when approved by the board of education, shall the time exceed twelve calendar months.

Joint Appendix (" J.A." ) 251. LMHS's student handbook— which Doninger, as an LMHS student, signed, attesting that she had reviewed it with her family— specified, further, that the objectives of the School's Student Council include: (1) " [m]aintain[ing] a continuous communication channel from students to both faculty and administration, as well as among the students within the school," and (2) " [d]irect[ing] students in the duties and responsibilities of good citizenship, using the school environment as the primary training ground." Id. at 253.

The dispute at the heart of this case arose over the scheduling of an event called " Jamfest," an annual battle-of-the-bands concert that Doninger and other Student Council members had helped to plan. Jamfest was scheduled to take place in the School's new auditorium on Saturday, April 28, 2007, but shortly before the date of the event, the School's administrators learned that the LMHS teacher responsible for operating the auditorium's sound and lighting equipment, David Miller, would be unable to attend on that date. As a result, at an April 24 Student Council meeting, which occurred prior to the start of the school day, the students were informed that Jamfest could not be held in the auditorium without Miller, and that they had the option either to keep the scheduled date and hold the event in the cafeteria, or to find a new date. This announcement upset Doninger and her fellow organizers, who wanted to hold the event in the auditorium that weekend, as planned. Jennifer Hill, the Student Council's faculty advisor, recommended that they discuss the situation with Niehoff, the School's principal, and she accompanied them to Niehoff's office. They were unable to see Niehoff immediately, but Doninger volunteered to return to the principal's office during her study hall to help schedule a meeting for later in the day.

Thereafter, however, four Student Council members, including Doninger, decided to take immediate action. From LMHS's computer lab, they gained access to the email account of the father of one of the students. Using that account, the students sent a mass email alerting various LMHS parents, students, and others that " the Central Office [had] decided that the

Page 340

Student Council could not hold its annual Jamfest/battle of the bands in the auditorium" and urging them to " contact [the] central office and ask that we be let [sic] to use our auditorium." J.A. 219. They did so in spite of a school email policy that specifically restricted " [a]ccess of the Internet or e-mail using accounts other than those provided by the district for school purposes." 3 Id. at 275. The mass email included the district office's phone number and urged recipients to call that office and forward the email " to as many people as you can." Id. at 219. Another email, sent later that same day, included Superintendent Schwartz's email address and a corrected phone number. Both Schwartz and Niehoff received an influx of telephone calls and emails regarding Jamfest. As a result, Niehoff was called back to her office from a planned in-service training day.

Later that day, Niehoff, who by this time had in her possession a copy of the students' first email, encountered Doninger in the hallway at school. The parties differ in their accounts of the ensuing conversation, which took place in Niehoff's office. Doninger states that Niehoff informed her about the calls and emails that had been received that day and told her that because Schwartz was upset, " Jamfest was cancelled on [April] 28th." Prelim. Inj. Hearing Tr. (" P.I. Hearing Tr." ) at 262:4. Doninger testified that Niehoff left open the possibility of Jamfest happening at a later date " if [the students] play [their] cards right," but not " until after [the] talent show." Id. at 261:22-23. In contrast, Niehoff asserts that she never told Doninger that Jamfest was cancelled, but rather stressed that the information included in the mass email (to the effect that the auditorium could not be used) was incorrect, as " the option of rescheduling was always there if they did not want to use the cafeteria on the 28th." Id. at 492:3-4. Niehoff contends that she then had a discussion with Doninger in which she told Doninger that her conduct— sending a mass email from the computer lab that contained inaccurate information, rather than working with the administration to resolve the problem— was unbecoming of a class officer.4 Doninger, however, denies that Niehoff said anything regarding her responsibilities as a class officer. Finally, Niehoff states that she requested that Doninger, with the other senders of the email, compose a new email to correct the misinformation in the first one. Niehoff contends that Doninger agreed to do so, while Doninger denies that this conversation took place.

That night, from her home, Doninger posted a message on her publicly accessible blog hosted by livejournal.com, a website unaffiliated with LMHS. The blog post began as follows:

jamfest is cancelled due to douchebags in central office. here is an email that we sent out to a ton of people and asked them to forward to everyone in their address book to help get support for jamfest. basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and emails and such. we

Page 341

have so much...

To continue reading