Sotomayor Ruled in "D-Bag Case"

Ruled teen's blog post created a created "foreseeable risk of substantial disruption"

By YVONNE NAVA and LEANNE GENDREAU

Updated 1:13 PM EST, Mon, Jun 1, 2009

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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.

Avery Doninger and mother Lauren

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.”

The ruling in this case has come under heavy criticism from some civil libertarians. Some say this case presents a solid rationale for rejecting Judge Sonia Sotomayor of New York’s Second Circuit Court of Appeals to fill the seat of retiring Justice David Souter.

“The continual expansion of the authority of school officials over student speech teaches a foul lesson to these future citizens,” Jonathan Turley, a law professor at George Washington University, told the New Britain Herald. “I would prefer some obnoxious speech [rather] than teaching students that they must please government officials if they want special benefits or opportunities.”

Almost two years after the Doninger case, the state legislature tackled a bill dealing with the overarching issue of free speech for students. Watch the video here.