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RE: Sotomayor's Bad 1st Amendment Decision Should Disqualify Her - Paul Levinson - Open Salon


RE: Sotomayor's Bad 1st Amendment Decision Should Disqualify Her - Paul Levinson - Open Salon
by zeugma at 5:56 pm EDT, May 28, 2009

Rattle wrote:

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.

I think Sotomayor has lost my support...

I felt the same way before reading the full court opinion. The episode is an absurd waste of the court's time. First, the school didn't even cancel jamfest, they just changed the date as a faculty member could not be there to do the lighting - but Avery misrepresented this fact on her blog where she tried to waste the administration's time by getting everyone to harass them on the phone to "piss them off more". This pretty much worked as the central office got swamped with phone calls.

Here is the relevant portion:

On May 17, Avery came to Niehoff’s office to accept her nomination for Senior Class
13 Secretary. Niehoff handed Avery a printed copy of the April 24 blog post and requested that Avery
14 apologize to Schwartz in writing, show a copy of the post to her mother, and withdraw her
15 candidacy. Avery complied with the first two requests, but refused to honor the third. In response,
16 Niehoff declined to provide an administrative endorsement of Avery’s nomination, which effectively
17 prohibited her from running for Senior Class Secretary, though Avery was permitted to retain her
18 positions as representative on the Student Council and as Junior Class Secretary. According to the
19 district court, Niehoff explained that her decision was based on: (1) Avery’s failure to accept her
20 counsel “regarding the proper means of expressing disagreement with administration policy and
21 seeking to resolve those disagreements”; (2) the vulgar language and inaccurate information included
22 in the post; and (3) its encouragement of others to contact the central office “to piss [Schwartz] off
1 more,” which Niehoff did not consider appropriate behavior for a class officer. Id. at 208.

Apparently, to run for class secretary at her school one needs an administrative endorsement, and surprise! - Avery gets to learn that when you call administrators douchebags, misrepresent their actions publicly, and encourage everyone to harass them on the phone they might decline to endorse you. In the real world she would have just gotten fired.

Is the court actually supposed to force the administration to endorse her?

The court opinion also notes that they could rule differently if a real punishment was given:

We are mindful that, given the
8 posture of this case, we have no occasion to consider whether a different, more serious consequence
9 than disqualification from student office would raise constitutional concerns. See Wisniewski, 494
10 F.3d at 40.

RE: Sotomayor's Bad 1st Amendment Decision Should Disqualify Her - Paul Levinson - Open Salon

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