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Should lawyers for municipal insurance companies refer to students as inmates?

Below is a letter that I sent to executives at Massamont Insurance concerning a comment by a lawyer they have retained in the Avery Doninger case.

Dear Sirs,

Today is day two of a preliminary injunction trial in U. S. District Court in New Haven Connecticut concerning the case of a student who refered to members of the school administration with an offensive and derogatory term. The case asserts that her civil rights have been violated and the ACLU has filed an amicus brief on her behalf in the case.

The case is gaining national attention and a local television station quoted the defense attorney as saying,

"If we get to the point where a class officer can call the superintendent an (expletive) and it's OK, then we've turned the keys to the asylum over to the inmates. It's not OK,"

The Bristol Press reports,

"Attorneys Thomas Gerarde and Katherine Rule of Howd & Ludorf suddenly emerged as part of the defense team on July 26, when they filed appearances and a motion to have the case moved from state to federal court.
While Chinni referred to the hiring of the Howd and Ludorf attorney's as "a private matter" and denied the existence of any retainer agreement last week, Gerarde said on Thursday that the Region 10 Board of Education's insurance company, Massamont Insurance, was paying the firm's attorney fees. He also said Howd & Ludorf has a retainer agreement with Massamont Insurance for the Doninger case."

Does the characterization of schools as asylums and students as inmates reflect the values of Massamont? Does Massamont believe that pursuing this case through the U. S. District Court is the most effective method of loss control?

I look forward to any insights you can share into the thinking by Massamont executives as this case unfolds.

Aldon Hynes

The issue of context, when is a douchebag a douchebag?

One of the folks watching the hearings this morning remarked that this was the first time he had ever seen a United States District Judge use the word ‘douchebag’ seven times in one morning. The questioning and testimony concerning the word bordered somewhere between amusing and absurd.

The lawyer for the defense asked this morning’s witnesses, two high school students involved in the case, if they thought it was in appropriate for a member of the student government to refer to a member of the administration as a douchebag. There was some back and forth between the lawyers and the judge about the relevance of the line of questioning, and judge suggested to the defense attorney that if he really thought it was beneficial to poll the student body as to whether or not it was appropriate, then by all means, he should proceed, and proceed he did.

The attorney for the plaintiff explored a different line of questioning the meaning of the word douchebag in various contexts. I believe he established that in some contexts it might be considered highly offensive, and in others it may actually be appropriate. There was not a discussion what sort of context a post on Livejournal should be considered. Is it more like official school or legal communication, or is it more like high school kids chatting amongst themselves in a mall?

That said, with all due respect, I would like to present a fictionalized, and hopefully humorous account of how I think the testimony should have gone. Some of the ideas have been gathered from others closely following the case:

Defense Attorney: Do you think it was appropriate for a member of a student government to refer to a person representing the school as a ‘douchebag’?

Student: I don’t know. I guess sometimes it does. I guess it depends on the setting.

Defense Attorney: The blog post in question is now a part of the court record. Do you believe that using such language in court is appropriate?

Student: Um, I’m not sure.

Defense Attorney: As an example, would you and your fellow students feel it is appropriate to refer to me as a ‘douchebag’ here in court?

Student: No sir. ‘Douchebag’ connotes a jerk. Instead, we would probably refer to you as ‘shit for brains’.


Defense Attorney: I have no further questions.

Plaintiff Attorney: You have said that to you ‘doucebag’ connotes a jerk. Am I correct in understanding that you do not believe that Miss Doninger was referring to members of the school administration as feminine hygiene products?

Student: That is correct, sir.

Plaintiff Attorney: Do you believe that Miss Doninger was justified in asserting that the members of school administration are jerks?

Student: Yes sir.

Plaintiff Attorney: Can you explain to the court why students might consider members of the school administration jerks?

Student: Perhaps a good starting point would be to ask members of the school administration why we are in a Federal Courthouse on a fine summer day discussing when it is appropriate or not to use the word ‘douchebag’.

Plaintiff Attorney: I have no further questions.

Democracy is disruptive

I am no legal eagle, so my analysis of the first day of testimony at the Avery Doninger trial may be a little off base. As I understand things, a key defense that a student’s freedom of speech has not been violated is if the student’s speech was ‘disruptive’.

The defense lawyer grilled the students testifying about whether or not the students knew if the administration had been disrupted by receiving all the phone calls that they had been receiving. He seemed to be suggesting that it is a disruption for school administrators to receive phone calls from concerned parents and taxpayers.

The defense repeatedly asked students if they thought it was appropriate to for the students to send an email encouraging taxpayers to contact the school. The implication was that he believed it was not. I suspect this gets to a crucial point in the case. The view of the school administration seems to be that they can’t be bothered with what parents and taxpayers think. The implicit message is that the school administration knows best and the parents, students and taxpayers be damned.

The same issue came up with campaigning leading up to the vote. Avery and her supporters had T-shirts saying Team Avery, and something like “Support Freedom of Speech”. The school seems to suggest that this was disruptive as the reason it wasn’t allowed into the room where people were campaigning.

A key argument of the administration is that student leaders serve at the whim of the administration, and they need to act like adults to earn that privilege. Well, excuse me, but I believe that the folks who are acting like adults are the students. When you want to get a policy changed, you get people involved and urge them to contact the policy makers. That is what we adults do. We encourage friends to write to our elected officials. When we run for office, we wear T-shirts and buttons.

At the end of the day, Judge Kravitz addressed both sides talking about how cases like these are the ones that lawyers and judges love as they wind their long way to the Supreme Court. Yet he went on to talk about this from a perspective that is extremely important to me, that of the teaching opportunity. I believe that today was a valuable day for Avery and the students that got a chance to testify today. If this drags on, it can be a wonderful opportunity for students to learn more about the legal process. Yet Judge Kravitz had another suggestion. This could also be an opportunity for students to learn about finding meaningful resolutions other ways than litigation.

I hope that people listen to his remarks. Yet that may require relearning other more important and difficult lessons about humility, being able to admit one’s mistakes. Right now, it appears as if the school administration is more interested in vindictiveness and their lawyers on nitpicking than they are in serving the public interest or helping students learn.

Blogging the Avery Doninger Case

It is 8:38 in U. S. District Courtroom 4 in New Haven, Connecticut. Fluorescent lights overhead illumine room with its green carpet, wooden benches and leather seats. Ms. Doninger, her mother and her grandmother are all hear early. The grandmother is reading a book by David McCullough. There is a discussion amongst the lawyers and the staff about the positioning of projection devices. Systems has been called. Others appear and concern is expressed about the size of the courtroom and where people will sit.

Folks from the ACLU show up as well as friends of the Doningers. On the way in, one of the U.S. Marshals was a bit surly, asking why I was hear. I asked if this was the U.S. District court. And where Judge Kravitz’ courtroom would be. A second Marshal was much more friendly, asked if I had a cellphone and we joked around.

The guy from Systems has shown up and they talk about where to place the projector. They move things around, which places me in a better place to see. Andy Thibault shows up and I chat with him briefly.

After four hours of testimony, court is adjourned. I’ve headed up to a local café with Wifi so I can put up this post, eat some food, and then put up a summary post later.

Grow up, douchebags!

Blogging the Avery Doninger Case

In a couple of hours, the Avery Doninger Case will start in U.S. District Court in New Haven. Doninger is the student at Lewis Mills High School who was forbidden to run for reelection as class secretary after writing disparaging comments about the school administration in a personal blog. I’ve been blogging about this fairly regularly, as has Andy Thibault at Cool Justice.

He put up a great post last night about the CT ACLU’s Amicus Brief in support of Ms. Doninger. (See the brief here.

I am heading out the door to cover this as a blogger. I am wearing my Blogger shirt that Kim embroidered for me. I doubt the court will have issue with me wearing it, but I’m bringing another shirt just in case.

As he provides his commentary, Andy has one line that made me chuckle. His suggestion to the administration of Lewis Mills High School:

Grow up, douchebags!