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.

Avery’s Direct Examination: A Chilling Effect

The first witness on the stand was Avery Doninger. Under direct examination, she spoke about the chilling effect that her punishment has had on her. For those looking for relevance, “chilling effect” is an important concept in issues of the first amendment. Wikipedia defines chilling effect as “a situation where speech or conduct is suppressed or limited by fear of penalization at the hands of an individual or group.”

It goes on to say, “In United States law, chilling effects refer to the stifling effect that vague or overbroad laws may have on legitimate speech and activity typically protected by the First Amendment.” Wikipedia also notes that the Justice William Brennan used the term in a Supreme Court decision in Lamont v Postmaster General in 1965. For all of those fans of Ned Lamont, the Supreme court case was brought by Dr. Corliss Lamont, Ned’s great uncle.

Wikipedia sums up the case and the idea of a chilling effect saying, “The Lamont case did not center around a law that explicitly outlawed speech; a "chilling effect" can exist even when there is no explicit prohibition of speech in the law at all.”

Avery spoke about ever since her punishment, she has been very nervous about what she writes. She spoke of being afraid to post bulletins on MySpace, about only talking in generalities on Instant Messenger and logging her sessions. She described herself as being a very opinionated young woman who has never afraid of expressing her opinions. However, since her punishment, she has been afraid of being punished for speaking out. She spoke about being concerned about people taking her writings out of context.

She was then questioned about her would alter her choices in colleges. She spoke about the importance of the senior year in terms of pursuing and excelling ones field of interest. She spoke of sports figures, for whom the senior year is extremely important in the continued development of the skills that will be essential to their success in the coming years. Her passion is government, and by being banned from being class secretary, her chances to exercise and build the skills that she believes are essential to her success in the coming years is being unjustly denied her.

If the school administration were even halfway as committed to quality educations as Ms. Doninger is, they would be actively seeking ways to help students like Avery excel. If they are so afraid of students that express opinions they don’t like, perhaps they should seek opportunities that will give Avery even better chances that she would get as class secretary. Maybe she could intern for Judge Kravitz. Maybe she could work with Secretary Bysiewicz to ensure fairness in elections both in high schools around the state as well as in our public elections and work for greater citizen involvement in the electoral process. Perhaps she could be given a role representing students before the Region 10 Board of education.

As to where she decides to go to college, I hope she aims high. I hope that she finds people who have followed the case closely who would be willing to file amicus briefs on behalf of any college application she submits. During her cross-examination, Judge Kravitz noted that she had been a very good witness. Her ability to speak passionately and persuasively during her testimony is particularly noteworthy.

The Defendants

During Avery’s testimony, I wondered what the reaction of the defendants would be and I glanced over to where they should be sitting. They were not there. At around 9:55, the principal arrived and a bit later the superintendent showed up. I marked them tardy in my log of the trial.

Avery’s Cross Examination: A search for relevance

If there was one comment that summed up the cross examination, it was when the judge informed the defense “This is all very interesting, but I don’t see how it has any bearing on what I have to decide”. He often seemed to roll his eyes and show many other signs of boredom with the line of questioning. At one point, the plaintiff’s lawyer objected that a question had been asked at least three times already and the judge noted that that was the case with most questions. At another point, the judge let out a long sight as he sustained yet another objection by the plaintiff’s lawyer.

The judge noted that he was not here to second guess the school administration concerning what punishment is appropriate. He wanted to focus on the constitutional issues. Unfortunately, it seemed like the defense was unwilling or unable to address constitutional issues.

One spectator noted that the defense lawyer seemed like a short tailed dog, going in circles, chasing a tail he would never be able to catch. Another noted that he seemed to be playing, “Am I smarter than a high school student”, and losing.

At one point, the defense asked questions that illustrated his lack of understanding of the difference between class officers and members of student council. He repeatedly asked questions mixing up the two and Avery tried to get the defense to understand the two. The judge noted to Avery that he understood the difference and tried to get the defense lawyer to understand the difference and not ask questions illustrating the defense lawyer’s ignorance.

At another point, the defense suggested that perhaps Avery had misunderstood what Principal Niehoff was telling her. The judge commented that perhaps misunderstandings are a key subtext for the whole proceedings.

If anything, the defense seemed to damage his case by indirectly suggesting that they wanted the chilling effect. He repeatedly pushed Ms. Doninger on why she didn’t post her opinions privately in LiveJournal and why afterwards when it became an issue she didn’t delete the post or keep it private.

Ms. Doninger explained that she, and her mother considered that Avery’s expressions of her opinions, no matter how well it was done or how ‘appropriate’ the language, was protected by free speech.

As to the appropriateness of the language, Avery’s mother did not consider the use of the contested word appropriate. Yet when a child uses a word that adults consider inappropriate at home, it should be the parents that determine the punishment, as Avery’s mother did, and not the school district.

Reflections during the relevance hiatus

Since the relevant content seemed to be so profoundly lacking during the defense’s cross examination, I found my mind wandering. I remembered my days in high school, and the fear that students had of being called before the principal or superintendent. I thought of the arbitrary nature of school administrations without any apparent recourse. There seemed to be some justice in seeing school administrators pulled in front of a judge.

I also reflected on chilling effects. I think there is some benefit in people being more circumspect in what they write. I do not think it is all that bad that Avery spends time thinking more carefully about what she writes. We would all be better off if we chose words more carefully. However, it should not inhibit people from authentically expressing their opinions.

Yet there is a different chilling effect. What sort of chilling effect might this case have on school administrations? Perhaps that is part of what the defense lawyer was aiming at when he commented,

"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,"

Well, when I was in high school thirty years ago, many students repeatedly referred to school superintendents as (expletives). They did it outside of school, similar to how Avery did. They encouraged people to confront the school administration. Yet when I grew up, school administrators had thicker skins and respected the constitution.

If the other chilling effect is that it causes school administrators to think twice about constitutional issues and pedagogical issues before handing out arbitrary punishments, perhaps it would be beneficial.

Further examination of Avery

During the cross examination, the defense asked Avery if she considered the email that she and other students had sent within the guidelines of the school’s internet usage policies. The plaintiff objected on best evidence grounds. Wouldn’t it be better to submit the internet usage policies as evidence?

When it became the plaintiff’s chance, he did exactly that. He noted that the use of the internet was for school related purposes. Avery said that since Jamfest was a school event, then she considered this to be a school related purpose and well within the bounds of the internet usage policy.

The defense presented the case that in another section of the policy it says you must use school provided accounts, and the email account that was used to send the email was not school provided. Avery noted that there are no school provided email accounts, that teachers encourage students to use email to send class work between students and if sending an email through SBCGlobal is forbidden, then the school should be blocking the account. Between not blocking the webpage and by teachers encouraging students to email class work, the school undercuts its own internet usage policies.

Personally, I am a bit of a cyber-libertarian. We should be very careful about how we restrict students’ ability to communicate. It appears obvious that in this case, the application of the internet policies are not to promote educational opportunities, or to protect the students, but instead to protect the administration from having to speak with parents, voters and taxpayers. The Region 10 school board should look very closely at the policies in place to determine which policies truly protect and serve to facilitate the education of students in the district.

The poignancy

During a brief recess, I learned about the four teens killed in a Bristol car crash late Thursday night.

With summer winding down, a pool party brought eight young friends together. Four of them would not make it home.

A spectator reported to several of us that one of the victims was Myles Gosselin a 17 year old from Burlington, a classmate of Avery’s. Shock and despair tormented Avery’s mother’s face when she heard the news. The defense lawyer let us know that they had kept the information from Avery so as not to distract her testimony. For once, I agreed with the defense.

At the end of Avery’s testimony, her mother gave her a big hug. It was a touching moment where I wished I could have had a camera. The care and compassion shown by a mother for a daughter who has just been through one trying event and is about to encounter another is hard to express in words, but should be more of a model for all of us, whether we are school administrators, teachers, writers, lawyers, or whatever.

The plaintiff rests

In a surprise, the lawyer for the plaintiff rested after calling Avery. They had been expected to call Avery’s mom, but they appeared to believe that they had presented enough evidence and I believe wanted to get on with the case.

The defense seemed surprise, but recovered quickly and called their first witness, Jennifer Hill, a former English teacher at Lewis Mill High School, and advisor to the student council. There were questions about when she knew that Jamfest might be cancelled, moved or postponed. There were questions about what she suggested students do.

She asked the students to gather their grievances. She said she “wanted them to be clear, concise and confident”. She said she suggested that the students speak with their parents, but did not tell them to write the email to parents. She also said she did not remember whether or not the students told her they would be sending an email.

When the defense lawyer returned to his time wasting ways of asking the same question over and over again, she cut him off asking, “didn’t I already answer that?”

In many ways Avery Doninger appears to be the heroine of this adventure, standing up to an overreaching administration the way too few students ever do. Yet, Jennifer Hill gets the best supporting actress, or the unsung heroine award, for focusing on clarity, being concise, and searching for educational moments in the best interest of the students.

Karissa Niehoff

The defense’s second witness was Principal Karissa Niehoff. The testimony started off by giving her background as a gym teacher who became a principal. One of the spectators took the old saying, “Those who can’t do, teach. Those who can’t teach, teach phys ed,” and added “Those who can’t teach phys ed, become school administrators”.

During questioning about the punishments handled out, she was asked if any of the students involved in the Jamfest issue faced suspension or expulsion. She said none of the did, and ominously added, “right now”. This raised the eyebrows of many in the spectators’ gallery. Earlier, one spectator spoke about how lucky Miss Hill was to be teaching in a different school district now, and others expressed concern about how the students that have testified will be treated by the school administration. One person claimed that the Doninger’s had had to subpoena Avery’s friends to get them to testify because they were afraid to publicly speak out against the administration.

It seems incumbent on the board of education to keep a very close eye on the behaviors of the school administration over the coming year to make sure that there are no further issues that could land the school in much deeper legal issues.

It does seem as if there may be further issues in the pipeline. Under cross examination, Principal Niehoff admitted that she instructed an employee of the school to put erroneous information in the disciplinary file of one of the students.

More significantly, she asserted that the logs were overwritten every year, and acknowledged that they had been recently overwritten in preparation for the new school year, even though they already shown to be materially significant in a case in the Federal Courts. Many spectators wondered if obstruction of justice charges will be pending against the school district.

The plaintiff’s lawyer then demonstrated from information provided by the principal and admitted as an exhibit in the case that the disciplinary logs are not overwritten each year contrary to what the principal had testified.

There were numerous other occasions where her testimony was in direct conflict with the testimony of other witnesses. However, since much of it is ultimately “he said, she said” testimony, proof of perjury is unlikely at this point.

Disruptions

Back to the relevance issue, it appears as if a key aspect of the defense is that having to respond to the emails was disruptive. Members of the school administration had to interact with parents, which was considered disruptive, instead of more important things, such as attending a luncheon celebrating secretaries’ day.

During cross examination, Principal Niehoff admitted that dealing with parents was actually part of her job. She also admitted that other than her schedule getting a little complicated, there were no disruptions in the school. She admitted that no students had commented about the blog post to her and there were no apparent disruptions from the blog post, which is the document at the center of the Freedom of Speech case.

It was also striking that events that change the schedules of school administrators are treated with the utmost seriousness, but the whole event was precipitated by an apparent disregard to concerns about the schedules of students as it related to a major event at the school.

Ironies

During cross examination, Principal Niehoff was pushed on the issue of ‘good citizenship’. Good citizenship, did not include, in her opinion, using derogatory terms like ‘douchebag’. The plaintiff’s lawyer pushed hard on this trying to get what sort of terms are acceptable and which are not. In many ways it sounded like the real issue is not the derogatory term, but the willingness of a student to criticize the administration.

When asked about what it means to be a good citizen, Principal Niehoff spoke about students emulating key political leaders, but balked at endorsing President Bush’s referral to people he disagreed with as assholes.

Her biggest concern, however, seemed to be with Avery encouraging people to ‘piss off’ Superintendent Schwartz. The plaintiff pointed out the context of the phrase ‘piss off’ by noting that Superintendent Schwarz was getting pissed off by all the calls she was receiving about it. The plaintiff suggested that Avery used the phrase ‘piss off’ to illustrate Superintendent Schwartz’ resistance to doing her job of interacting with the citizens of the school district.

While the judge did not seem to buy the argument that Avery was using irony in her comments about pissing off Superintendent Schwartz, he did note that irony appeared to be another key subtext in the trial.

Next Steps

The day ended without the last scheduled witness for the defense being called. Judge Kravitz is hearing a different case much of next week, so the hearings are now scheduled to resume next Friday at 1 PM. Between now and then, I’ve been told that the Region 10 Board of Education will be meeting Monday night and that there may be talks between the plaintiff and the defendants on Wednesday about a possible settlement.

I hope I do not ‘piss off’ Superintendent Schwartz by encouraging voters in Region 10 to attend the Board of Education meeting on Monday and encouraging others to do the same. It seems to me as if the taxpayers need to look very closely at the jobs Principal Niehoff and Superintendent Schwartz are doing. Are they more interested in facilitating a quality education for their students, or are they more interested in defending some warped sense of power? Is money being well spent in their use of the school lawyers? Are the school lawyers doing a good job on behalf of the school? Is the company providing insurance, and additional lawyers, acting in a way that truly benefits the school district? I hope citizens ask these questions of the school board.