This evening, I received an email containing the brief filed in the United States Court of Appeals for the Second Circuit for the case of Lauren Doninger, P.P.A. as Guardian and Next Friend of Avery Doninger, a minor, Appellant v. Karissa Niehoff and Paula Schwartz, et al., Appellees.

If you are new to this site, I would encourage you to read my coverage in the Connecticut section of this blog. For those of you who like reading briefs, I would encourage you to read the brief filed by Martin Margulies and Daniel J. Krisch of the Center for First Amendment Rights as well as the brief filed by Jon L. Schoenhorn who will be arguing the case at the Second Circuit.

Schoenhorn’s brief is loaded with phrases like “The District Court erroneously concluded…The sanction imposed on her violated The Supreme Court’s rule in Tinker…The District Court abused its discretion…The District Court failed to address…The defendants violated Avery’s constitutional right…” It is 68 pages of legal arguments.

Margulies brief is shorter and emphasizes three key points, that elective student office is a “privilege” is irrelevant to this appeal, that the Tinker standard controls this litigation and that the defendants’ actions cannot withstand Tinker analysis. It is 28 additional pages of legal arguments. It is summed up with the following:

There is no evidence that the blog, or any component thereof, caused Tinkerstyle interference or disruption; the plaintiff is substantially likely to succeed on the merits; and a temporary restraining order or preliminary injunction should therefore issue.

While these arguments may be the most compelling from a strictly legal basis, I continue to seek more fundamental understandings of what is going on. This can be found in a wonderful section the latest brief I’ve received. Robert M. O'Neil and J. Joshua Wheeler of the The Thomas Jefferson Center for the Protection of Free Expression write

Schools exist not only to instruct students in specific skills and disciplines, but equally – some would say far more importantly – to prepare them for responsible citizenship in a democratic society. When a principal or superintendent punishes an otherwise model student for speaking impertinently or disrespectfully of authority, such action conveys the worst possible lesson, not only to the speaker but to the whole school community. The clear message is that conformity and obedience will be rewarded, while dissonance and independence may risk disapproval or worse. The nature of the punishment is also noteworthy; by refusing to acknowledge Appellant's write-in victory, the school is sending the message that votes do not count – a dangerous civics lesson.

Reversal of the ruling challenged here would hardly leave school officials powerless to preserve both dignity and discipline against genuinely rebellious or contemptuous students. At the very least, principals and superintendents enjoy their own freedom of expression, and might discover the ultimate value of counter-speech or refutation as against repression or punishment. If revoking extra-curricular privileges were an administrator's sole recourse in dealing with an outspoken student that would be a very different matter. In the real world of secondary education, however, means are readily at hand which are wholly consistent with First Amendment values and principles of student speech.

This places the whole issue back properly into the educational context which the lawyers and administrators of the school seem to complete ignore.

Whether these arguments will be compelling remains to be seen. They certainly are to me, yet my interest in such matters is much closer to that of a writer, an educator, or a priest, concerned with seeking fundamental meanings, and not simply the meanings as they might be argued in court. Whether or not this will win the day in court for me in a few legal issues that I’m involved with remains to be seen. Yet I can look at myself in the mirror and not be ashamed. I can sleep well at night, except when Kim is tossing and turning because of an illness, and I have to wonder how others can do the same.