The Latest Doninger Brief

Well, it is finally online. For those of you who enjoy reading legal briefs filed in The U.S. Court of Appeals won’t want to miss this one:
The Reply Brief of the Plaintiff-Appellant in the Avery Doninger case.

Now, normally, I would not recommend reading legal briefs as a form of relaxing entertainment on a Sunday afternoon a few weeks before Christmas, but this brief is fun to read; either that, or I need to get out more.

The brief starts off with a bang, asserting that the “Defendant’s factual recitations do not comport with either the District Court’s findings, or the record of the case.” In Caps. Bolded.

For example, although the district court made no findings that Avery’s blog caused disruption at the school, or even created the foreseeability or likelihood of such disruption, plaintiff counts 24 occasions where the defendants state that Avery’s blog (or the
April 24th e-mail) was disruptive.

More importantly, however, is the issue of what constitutes ‘school speech’.

Of course, many of the findings are not in dispute. Some, however, are, and have been noted in the plaintiff’s brief, at pp. 13-15. In particular, the plaintiff disputes the findings that the internet blog was “school speech” because it was “reasonably foreseeable” that Schwartz would become aware of it and because it was “purposely designed by Avery to come onto the campus.” Both of these findings are without factual basis in the record.

In many ways, this gets to a key issue. How do we understand what is ‘school speech’? Given the persistence of material posted on the Internet and the ease in searching, is it fair to say that anything posted on a blog could be considered school speech because it is could reasonably be foreseen that a school administrator could find it? If a person makes a comment to a friend in a local store about a school administrator, would it be reasonably foreseeable that someone could have over heard it and repeated it to the school administrator?

This ties back to the issue of privacy that was discussed at the symposium at Yale Law yesterday. To what extent can people expect some level of privacy, even for things they do in public? For example, when I pick up a prescription at a local pharmacy, that is a public place. Yet I would not expect people to try to look over my shoulder to find out what I have purchased and then publish it widely. Likewise, if I wrote in an online journal which was set up to talk with friends, my frustrations with the local school administration, I would not expect the son of the superintendent to come around a few weeks later and make a Federal case out of it.

Another interesting aspect is the claim by the defense that “that issuing an injunction to “void” an election “simply cannot be done””. Perhaps that gets to another key aspect of the case. There may be some people who believe that unfair elections and elections where votes are not properly counted simply cannot be voided. It seems like citizens of Burlington and Harwinton should be concerned if the message being taught in their schools is that your vote does not count. Any administrator that wants to promote that as a message shouldn’t be fired because of some lawsuit. They should be fired for pedagogical reasons.

Yet none of these things are all that much fun reading. The real fun comes when the writer of the brief takes of the gloves with comments like:

The defendants’ bold and unconstitutional reach into Avery’s bedroom to censor and punish her for a written communication, is likely to cause (and may have already caused) a chill to countless other students, who will fear punishment for what they say or write outside school, because some priggish and thin-skinned school official may deem it “offensive.”

Then, they take the defense to task with this interesting section:

the defendants curiously rely on cases as old as 170 years to justify restrictions on the speech rights of public school students... The first case, State v. Pendergrass, 19 N.C. 365, 366 (1837) involved physical abuse of a 6- or 7-yearold girl by a schoolmaster, who whipped her with a switch for being disobedient, that left marks on her body visible for two days.

It is not surprising that the lawyer who compared students to inmates and the high school to an asylum would base his defense on cases argued to support abuse. It is truly unfortunate that some people involved in education today still believe that abuse, whether it be physical or emotional is an acceptable basis for pedagogy.

The brief captures some of this,

While these defendants may long for the “good old days” of cruel and authoritarian Dickensian schoolmasters, like Mr. Creakle, who punished impudence and protest by pupils – even small children – with physical abuse, deprivation or expulsion, and who believed they could act with impunity, the defendants here do not recognize the irony of relying on cases that pre-date the development of the incorporation of the first amendment into the concept of ordered liberty under the fourteenth amendment. Indeed, two of these cases predate the passage of the fourteenth amendment by decades!

Okay, some of you may not find reading all of this as much fun as watching High School Musical, but to someone who has been following the case closely I have to say, I greatly enjoyed reading the brief. Yet my opinion, or your opinion isn’t what matters. What matters is the opinions of the justices that will review the appeal, and we still have to wait a while to find out what their reactions will be.

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