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June 01, 2009

Sonia Sotomayor: Free Speech Douchebag

Harsh title? Yeah – but it fits, given the nominee’s hostility to the political speech of one teenager.

President Barack Obama’s nominee to fill a Supreme Court vacancy has yet another tie to Connecticut. She sided against a student in the infamous “douche bag” case, and that has upset some free-speech advocates.

Judge Sonia Sotomayor sat on a panel that ruled against an appeal in Doninger v. Niehoff. The case was argued on March 4, 2008 and decided on May 29, 2008.
Avery Doninger was disqualified from running for school government at Lewis S. Mills High School in Burlington after she posted something on her blog, referring to the superintendent and other officials as "douche bags" because they canceled a battle of the bands she had helped to organize.

The case went to court and in March 2008, Sotomayor was on a panel that heard Doninger’s mother’s appeal alleging her daughter’s free speech and other rights were violated. Her mother wanted to prevent the school from barring her daughter from running.

Sotomayor joined two other judges from the 2nd Circuit in ruling that the student’s off-campus blog remarks created a “foreseeable risk of substantial disruption” at the student’s high school and that the teenager was not entitled to a preliminary injunction reversing a disciplinary action against her, Education Week reports.

In their opinion, the judges said they were “sympathetic" to her disappointment at being disqualified from running for Senior Class Secretary and acknowledged her belief that in this case, “the punishment did not fit the crime.”

However, the judges decided they were not called upon to determine if school officials acted wisely.

“As the Supreme Court cautioned years ago, “[t]he system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members,” and we are not authorized to intervene absent “violations of specific constitutional guarantees.”

In other words, Sotomayor ruled that the off campus political speech of a student can be the grounds for punishing that student at school if the school authorities feel insulted and inconvenienced by being required to respond to adults who were moved to ask questions about the operation of the school district due to that political speech.

What’s more, even though Sotomayor and her colleagues acknowledge that the punishment did not fit the crime, they were unwilling to act, much less confront the reality that school officials were doing nothing less than declaring that not only do students shed their First Amendment rights at the schoolhouse gate, but that they also lack those rights at any time and in any place that some school district official finds their exercise inconvenient – including in the middle of the night in their own homes when they are under the custodial authority of their parents and not the school.

I wrote extensively about this case at the time it happened. I was pleased to have had an extensive exchange of email with both Avery Doninger and her mother at that time. And as I said then, the best way for a school administrator to avoid being called a douchebag is to not act like one. That goes double for judges who would ignore the obvious First Amendment implications of school administrators overstepping their rightful authority – and is the single biggest reason that I oppose Sonia Sotomayor’s nomination to the US Supreme Court.

An article appeared last week in the New York Post about the case and Sotomayor’s part in it. I’m particularly struck by Avery’s observation on the matter -- "We want someone who is going to protect our First Amendment rights." Well said, Avery, well said. Here’s hoping that some member of the Senate Judiciary committee seeks to have both Avery Doninger and her mother testify at the confirmation hearings this summer, so that the nation can see what sort of erosion of fundamental liberties this nomination presages.





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NAME: Greg
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