Doninger v. Niehoff

• Decision Date: 15 January 2009
• Docket Number: No. 3:07CV1129 (MRK).,3:07CV1129 (MRK).
• Citation: 594 F.Supp.2d 211
• Court: U.S. District Court — District of Connecticut
• Parties: Avery DONINGER, Plaintiff, v. Karissa NIEHOFF and Paula Schwartz, Defendants.

594 F.Supp.2d 211

Avery DONINGER, Plaintiff, v. Karissa NIEHOFF and Paula Schwartz, Defendants.

No. 3:07CV1129 (MRK).

United States District Court, D. Connecticut.

January 15, 2009.

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Jon L. Schoenhorn, Jon L. Schoenhorn & Associates LLC, Hartford, CT, for Plaintiff.

Beatrice S. Jordan, Katherine E. Rule, Thomas R. Gerarde, Howd & Ludorf, David J. McGuire, Hartford, CT, Christine L. Chinni, Chinni & Meuser LLC, Avon, CT, for Defendants.

MEMORANDUM OF DECISION

MARK R. KRAVITZ, District Judge.

In Doninger v. Niehoff, 514 F.Supp.2d 199, 203 (D.Conn.2007), this Court denied Plaintiff's Motion for a Preliminary Injunction on the ground that she had not shown a substantial likelihood of succeeding on her claim that Defendants' actions while she was a student at the Lewis S. Mills High School violated her constitutional rights. Plaintiff appealed the Court's injunction ruling, and shortly before Avery Doninger's graduation, the Second Circuit affirmed in Doninger v. Niehoff, 527 F.3d 41 (2d Cir.2008). Though her request for an injunction is now mooted by her graduation, Ms. Doninger continues to press her lawsuit for damages against school officials.¹ After the close of discovery, all parties filed cross-motions for summary judgment. For the reasons that follow, Defendants' Motion for Summary Judgment [doc. # 73] is GRANTED in part and DENIED in part, and Plaintiff's Motion for Partial Summary Judgment [doc. # 74] is DENIED.

I.

The facts of this case are familiar to all involved, and were set forth at length in the Court's preliminary injunction ruling. See Doninger, 514 F.Supp.2d at 203. The Court assumes familiarity with the facts recited in that opinion. In brief, Avery Doninger, a former student at the Lewis S. Mills High School in Burlington, Connecticut ("LMHS"), challenges several actions by Karissa Niehoff, principal of LMHS, and Paula Schwartz, the superintendent of Region 10 School District. First, Ms. Doninger claims that Ms. Niehoff and Ms. Schwartz violated her First Amendment rights by disqualifying her from running for senior class secretary as punishment for a blog entry that Ms. Doninger posted on livejournal.com. Second, she asserts that Defendants violated her First Amendment rights by prohibiting students from wearing "Team Avery" t-shirts into the school auditorium while students were delivering speeches in connection with the election of class officers. Third, she contends that Defendants violated her Fourteenth Amendment rights by treating her differently from other similarly-situated students when they punished her for the blog entry and allegedly placed a disciplinary log in Ms. Doninger's permanent file. In addition to claiming that these actions violated her federal constitutional rights, Ms. Doninger also alleges that the same conduct by Defendants violated the Connecticut Constitution. Finally, she brings a claim for intentional infliction of emotional distress.

II.

Before turning to the motions currently pending before the Court, a brief review of the prior decisions in this case is in order. This lawsuit was originally removed from state court in July of 2007, shortly after Ms. Doninger completed her junior year at LMHS. Claiming irreparable harm if she was not given an opportunity to run for senior class secretary, Ms. Doninger sought a preliminary injunction on the basis of her First and Fourteenth Amendment claims. After holding four days of hearings, during which the Court heard testimony from ten witnesses and received into evidence numerous exhibits, the Court denied the Motion for a Preliminary Injunction, finding that Ms. Doninger had not established a substantial likelihood of success on the merits. Doninger, 514 F.Supp.2d at 218, 220.

A.

On Ms. Doninger's claim that disqualifying her from running for class secretary violated her First Amendment rights, after reviewing the Supreme Court's decisions concerning student speech in public schools, the Court initially observed that it was not clear whether the Tinker or Fraser line of cases applied to the particular facts at issue. In brief, in Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), the Supreme Court held that "conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior— materially disrupts classwork or involves substantial disorder or invasion of the rights of others is ... not immunized by the constitutional guarantees of freedom of speech." Id. at 513, 89 S.Ct. 733. In Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), the Supreme Court held that "[t]he First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech ... would undermine the school's basic educational mission." Id. at 685, 106 S.Ct. 3159.

The Court believed that this case differed from both Tinker and Fraser because it did not arise from a suspension or other similar student discipline but rather involved participation in voluntary, extracurricular activities—namely, serving as class secretary. In other contexts, the Court explained, "the Supreme Court and other courts have been willing to accord great discretion to school officials in deciding whether students are eligible to participate in extracurricular activities." Doninger, 514 F.Supp.2d at 213. The Court cited one treatise as noting that "an overwhelming majority of both federal and state courts have held that participation in extracurricular activities ... is a privilege, not a right." Id. For example, in Lowery v. Euverard, 497 F.3d 584 (6th Cir.2007), the Sixth Circuit held that it did not violate the First Amendment to bar students from participation on the football team because they had signed a petition seeking removal of the coach. The Lowery court reasoned that "Plaintiffs' regular education has not been impeded, and significantly, they are free to continue their campaign to have Euverard fired. What they are not free to do is continue to play football for him while actively working to undermine his authority." Id. at 600.

Similarly, this Court explained that Ms. Doninger's education was not impeded by Defendants' actions and she remained "free to express her opinions about the school administration and their decisions in any manner she wishes.... However, Avery does not have a First Amendment right to run for a voluntary extracurricular position as a student leader while engaging in uncivil and offensive communications regarding school administrators." Doninger, 514 F.Supp.2d at 216. In this case, even Ms. Doninger's mother conceded that Ms. Doninger should be punished for what her mother acknowledged was an offensive blog entry; Ms. Doninger's mother simply felt that barring her daughter from running for class secretary was a punishment that "did not fit the crime." Id. at 202. Without deciding what was the most "fitting" punishment for Ms. Doninger's conduct, the Court was willing to defer to the experience and expertise of school officials, though the Court hastened to add that "[n]one of this is to say that school officials have completely unfettered discretion to disqualify students from participating in extracurricular activities. [However,] [t]his Court is not faced with a case where a student was denied the right to run for student office because of the color of her skin, or her religion or even her politics." Id. at 215.

Nor was Avery barred from running simply because she disagreed with school administrators and that is made clear by the fact that the other three students who sent the mass Jamfest email were permitted to run for student office. Instead, Avery was barred from running as a class officer because of her conduct and the vulgar language she used in her blog, neither of which were consistent with her desired role as a class leader.

Id.

In the alternative, the Court concluded that if it had to choose between the Tinker and Fraser line of cases, the Court considered the facts of the case "closer to Fraser than to Tinker," though the Court admitted that "this calculus is less than entirely clear and that this case is neither just like Fraser nor Tinker." Id. at 216. The Court noted that the Second Circuit had recently decided Wisniewski v. Board of Education of the Weedsport Central School District, 494 F.3d 34 (2d Cir.2007). In that case, the Second Circuit extended Tinker to cover off-campus speech "that poses a reasonably foreseeable risk [of coming] to the attention of school authorities ...." Id. at 38. This Court reasoned that although Wisniewski concerned speech analyzed under the Tinker framework, its reasoning should be extended to include off-campus speech that would otherwise be analyzed under Fraser. See Doninger, 514 F.Supp.2d at 216. In other words, school administrators could punish off-campus speech that is offensive or vulgar by disqualifying a student from running for student office, so long as the speech, as here, posed a reasonably foreseeable risk of coming on to school property. The Court explained, however, that it would be reluctant to conclude that no First Amendment violation had occurred "in other factual contexts or if the discipline imposed on Avery were different." Doninger, 514 F.Supp.2d at 217.

The Court expressed "more substantial concerns ... regarding the `Team Avery' t-shirts," but decided that because there was no imminent election assembly, a preliminary injunction was not necessary. See id. at 218. Finally, the Court concluded that Ms. Doninger had failed to show a clear or substantial likelihood of success on the merits on her Equal Protection claim, which was based on a "class-of-one" theory, because she had failed to show that she was prima facie identical to others who were treated differently. See Doninger, 514 F.Supp.2d at 220.

B.

The Second Circuit...