Doninger

Blog posts about the Avery Doninger Case

That Sickness Where You Feel Cold and Don’t Want to Talk

At dinner last night, my five-year-old daughter wanted to know about that sickness where you feel cold and don’t want to talk, and I was very glad to explain it to her. I had been talking about my latest blog post on the Avery Doninger case and the “chilling effect” the actions of the school administration was having on Avery.

She is at an age where we can have interesting discussions about ideas like “freedom of speech”. We talked about how in some countries people could get punished for saying bad things about their leaders, but that that is not supposed to happen in our country. We spoke about how sometimes leaders don’t understand that and punish people for saying things that they are allowed to say and how it can make people afraid to say things that they have every right to say.

At the National Conference of State Legislatures’ (NCSL) annual meeting, David McCullough spoke about the importance of dinnertime discussion. Dr. Jack Shonkoff, Director of the Center on the Developing Child at Harvard University spoke about the importance of the early childhood years in a presentation on a A Science-Based Framework for Early Childhood Policy

The early childhood years lay the foundation for later economic productivity, responsible citizenship, and a lifetime of sound physical and mental health,”

This dinnertime discussion is part of the foundation that I hope Fiona will carry with her into her adult years as a responsible citizen.

Miranda, my fourteen-year-old daughter is off at school, so I haven’t had a good chance to speak with her about the lessons of the case, but there is a very important lesson for her as well. Miranda, like Avery, is bright, outspoken and has relished serving in student government. This summer, she attended the Johns Hopkins Center for Talented Youth (CTY) program and studied dissent. They read great works, like Martin Luther King's Letter from Birmingham Jail.

One of my concerns with courses of study like this, and I do not know if the CTY program fell into this problem, is that they present these great fighters for our civil rights as larger than life heroes that we cannot aspire to be. Perhaps Emerson said it best,

Meek young men grow up in libraries, believing it their duties to accept the views which Cicero, which Locke, which Bacon have given; forgetful that Cicero, Locke, and Bacon were only young men in libraries when they wrote these books.

The same applies to young women standing up for our civil rights. To use the words of a great old hymn, “for the saints of God are just folk like me, and I mean to be one too.” One of the things that is so important about Avery’s case is that she reminds all of us that the great fighters for our civil rights, were people just like you and I. I hope the story of her battle gets told to many high school kids and encourages them to stand up as well.

This takes me back to another aspect of the NCSL annual meeting. I spoke with many people there who bewailed the lack of involvement of their constituents in civic life. Is it because civics is not taught well enough in our public schools? Are people to scared to step out into civic engagement? Do people believe they are powerless? In many ways it seems as if Avery is being punished for exactly what political leaders across our country are fighting for. She got involved. She tried to get others involved and those in power didn’t like it.

In 2003, my wife and I were very involved in Gov. Dean’s Presidential bid. For us, and I believe for many, a key message was about all of us having the power change our country for the better. When he ended his bid, he encouraged his supporters to stay involved, to get more involved, to even consider running for office. My wife heeded Gov. Dean’s words and ran for State Representative. It was a great experience for both of us and I wish more people had these sorts of experiences. Like Avery, Kim is a regular person just like you or I.

So, just as I hope Fiona learned something about “that sickness where you feel cold and don’t want to talk”, I hope we all learn a little bit more about the importance of civic engagement from Avery Doninger and that we all stand a little taller and a little firmer in defense of our rights.

Relevance, Subtext, Comprehension, and Irony

Due to our move on Thursday, I was tardy as I rushed to the Federal District Courthouse for day three of the Avery Doninger Civil Rights case. I stepped into the spectator’s gallery of the courtroom quietly hoping to avoid any disruption of the hearing. Fortunately, the proceedings of the day had not yet started and if I missed anything it was the part where the announce says, “Today’s proceedings are brought to you buy the words relevance, subtext, comprehension, and irony.” Yes, my years of watching Sesame Street still colors my how I seek for the educational opportunities in life around me.

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,"

http://www.wfsb.com/news/13952307/detail.html

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."

http://www.bristolpress.com...

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’.

<laughter>

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.

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