Judging the Failure to Judge

In light of the announced David Souter Supreme Court retirement, speculation has run rampant on who the potential replacement might be. President Obama, in his surprise appearance at a press conference immediately following Souter’s announcement, stated that he views the “quality of empathy, of understanding and identifying with peoples' hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes,” seemingly alluding to a desire to place a minority in the position. By many accounts, one of the more prominent and obvious candidates is Sonia Sotomayer, who currently sits on the U.S. Court of Appeals of the Second Circuit in New York City, a level where every sitting Supreme court judge has come from. A Hispanic woman and liberal, she would certainly fill Obama’s desire for a minority, as well as serve as a candidate that would face little Republican opposition in the confirmation process. Although she was placed in her current position by President Bill Clinton, she was previously appointed to a federal bench by George H.W. Bush, her ability to work both sides of the political isle obvious. However, despite her substantial resume, one recent decision severely dampens her qualifications as a Supreme Court judge.

The decision at hand is Doninger v. Niehoff, which was presented before Circuit Judge Sotomayer as part of a three member appeals board. The case involves a 17 year old high school student who, upset about a decision by the school principal and superintendant with regards to the scheduling of a “battle of the bands” type event, used the term “douche bag” in describing, in particular, the superintendant Paula Schwartz and instigated calls to the school to “piss-off” the administration in a posting to her blog made from the privacy of her home. Once the school principal, Karissa Niehoff, became aware of the blog posting, she decided to approach the student, Avery Doniger, and inform her of three items she wanted done: first, apologize in writing to Schwartz, show a copy of the blog post to her mother, and finally, withdraw her candidacy for senior class secretary. Avery, who currently held a position on the student council and served as junior class secretary, complied with the first two demands, but refused the third. As a result, the principal refused to acknowledge Avery’s nomination to the position, effectively ending her attempt to run for the position. Interestingly, Avery still won the election as a write-in candidate, and the position was then given to the second place finisher.

The issue before Judge Sotomayer was an appeal made by Avery’s mother, Lauren Doninger, after the initial court ruled against her injunction to void the election results that her daughter, despite being nominated, was not allowed on the ballot. Here, an opportunity for the Sotomayer to make a strong statement on a larger issue was presented, yet quickly dismissed. In the decision, the conclusion states that while the judges “were sympathetic to her disappointment at being disqualified from running for Senior Class Secretary and acknowledge her belief that in this case “the punishment did not fit the crime.”” However, instead of making up for the previous decision, the court essentially ignored the issue, following up the previous statement with “we are not called upon……to decide whether the school officials in this case exercised their discretion wisely,” passing the buck on a very serious constitutional infringement. Certainly a judge with aspirations for a seat on the highest court in the land would not skirt such a large and politicized issue.

The role of the Supreme Court is, to put it bluntly, to make difficult, and often controversial, decisions. In the book The United States Supreme Court, editors Paul McCaffrey and Lynn Messina ascribe the court the “authority to invalidate legislation or executive actions which, in the Court’s considered judgment, conflict with the Constitution.” There are few better examples of a case of a decision that should be reversed than Doniger v. Niehoff. At issue here is not simply the case of a child wanting her way, or an offended school administrator. At its’ core is a first amendment issue, opening the door for a precedent making decision, one that the Sotomeyer appellate court seemed to wish no part of. Cases that make it to the Supreme Court almost exclusively deal with Constitutional rights and the judges that hear such cases must be willing, if not eager, to make the difficult decision, a desire Sotomayer seems to lack.

A closer look at the decision in Doninger v. Niehoff reveals the importance of the decision that was so skillfully avoided. The decision states that “the Supreme Court has yet to speak on the scope of a school’s authority to regulate expression that, like Avery’s, does not occur on school grounds or at a school-sponsored event. We have determined, however, that a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct “would foreseeably create a risk of substantial disruption within the school environment,” at least when it was similarly foreseeable that the off- campus expression might also reach campus.” For a potential Supreme Court nominee to walk away from a First Amendment issue simply because the Supreme Court has not yet rules and set precedent is unforgivable. Make a fair ruling, and let the Supreme Court sit for an appeal.

The reaction of law professor Jonathan Turley, whose name has also been mentioned for the soon to be vacant seat, is noteworthy. On his website JonathanTurley.org, he writes “I do not like the email and I believe that it would have been entirely appropriate for Niehoff to call in the parents about such language and conduct. The parents should be the punishing authority in such matters. However, no one appointed Schwartz or Niehoff as the monitors of good citizenship outside of their school. Central to any definition of good citizenship is free speech and not social conformity.” Students have already been subject it increased search and seizure laws, as well as those that have removed a great deal of personal privacy, including the Safford Unified School District v. Redding case recently heard in the Court, which involved a strip search as a response to an uncorroborated accusation that she had possessed ibuprofen. For the appellate court to rule in favor of the initial ruling that failed to grant the injunction in Doninger v. Niehoff is a clear violation of the rights of Avery Doninger, removing her right to run for office simply for her opinion, which was stated off campus on a public website. A qualified Supreme Court nominee should jump at an opportunity to protect this obvious violation of free speech rights.

An interesting note to this is that it is not simply a case of someone voicing their opinion in an inappropriate way. Certainly the selection of the terms used in the initial blog post was questionable, but the fact is it was done outside of school, and if punishment was warranted, it would be done by the parents. But in this case, the punishment doled out by the school administration to remove Avery from the ballot was a response, not to an opinion being made public, but of a negative and potentially embarrassing opinion being made public. It is unlikely the reaction of the principal and superintendant would have been as strong should the blog entry have waxed poetic on the virtues of the administrators. That the content of one’s opinion could in any way disqualify him or her from running for office in a system supported by taxpayer funds is a gross violation of the Constitution. That this was missed by the Sotomayer court is inexcusable.

One of the initial factors in the decision to disallow the Doninger nomination by the school administration was the blog postings’ “encouragement of others to contact the central office “to piss [Schwartz] off more,” which was not considered appropriate language or behavior of a class officer. In the Sotomayer decision, a previous case, Bethel School District v Fraser was used as precedent to set the schools responsibility for “teaching students the boundaries of socially acceptable behavior.” Nothing can be more socially acceptable, and in fact necessary, than the right of any citizen to call on others to contact superiors in order to further an agenda. As a nation, Americans are bombarded daily with a call to action, the desperate need to contact Senators and Representatives to further the cause of gay rights, lower taxes, or any number of popular issues. It serves as an integral part of our society and governmental structure.

The Sotomayer court, in missing the opportunity to overturn the earlier ruling, creates a paradox. How can youths be encouraged to take part in the political system, to pay attention as they observe the political process on a national level, then, when personally involved, be stripped of the rights granted to those they have learned from? There can be no minimum age on constitutional rights, especially freedom of speech. Additionally, the response to the blog which encouraged others to call the school and question the administrators that Niehoff, who was away at a work-related event, was called back in to the school. Therefore, the freedom of speech issues raised with Avery also extends to those callers that, as citizens and taxpayers, have every right to be heard as well.

That Sotomayer chose to ignore these issues is questionable at best, reprehensible at worst. She may have been within her rights to walk away from this, but certainly fell well short of what we have come to expect from a Supreme Court Justice. In an address made in 2002, William Rehnquist, the 16^th chief Justice of the Supreme Court, stated “perhaps the best description of the office is to say that the Chief Justice has placed in his hands some of the tools which will enable him to be primus among the pares but his stature will depend on how he uses them.” As a judge at any level, an amazing amount of authority is held, the tools to determine the rights of others used, or not used, as they see fit. With each increasing rank, these tools increase in proficiency, the effects of every word and action becoming more far-reaching. Any candidate that might be considered for a position on the most powerful court in the land must be trusted to know exactly when and how to use the substantial power granted them.

It would seem inappropriate to judge a potential candidate on one case in what is undoubtedly thousands of decisions rendered. No one would wish this level of scrutiny on themselves. But there are few rights Americans hold as dear as freedom of speech. The right to share opinions, whether negative or positive, is essential in a country founded on this very principle. That a minor was prevented from running for an office she was nominated for because her use of questionable language is a situation in which we expect, in fact, demand, our judges to jump at an opportunity of rectification, to make right an obvious wrong. As President Obama weighs his options for this open seat on the Supreme Court, the consideration of Sonia Sotomayer should be discarded. Maybe, just maybe, this is something worthy of a call to one’s local representative.