Due process for judges, free speech for students

Ordinarily, criminal defense lawyers stand up for due process of law, and, in doing so on behalf of their clients, help ensure due process for everyone.

But the other day the Connecticut Criminal Defense Lawyers Association betrayed due process when it submitted to the General Assembly’s Judiciary Committee dozens of anonymous comments from its members about judges being considered for reappointment.

Most of the defense lawyers’ anonymous comments about judges were reported to be complimentary. But some accused Superior Court Judge Patricia Swords, a former prosecutor,  of imperiousness and bias in favor of the prosecution.

These complaints gained credence when defense lawyer Jon L. Schoenhorn testified in opposition to Swords and recounted her refusal to grant him a continuance when he was called to substitute for a lawyer who had fallen ill. The Judiciary Committee was closely divided in approving Swords’ reappointment, and she was given another eight-year term only when Lt. Gov. Michael Fedele broke a tie vote in the Senate in her favor.

    u    u    u

Some Judiciary Committee members expressed resentment of the anonymity of the criticism of Swords. But a representative of the defense lawyers group told the Connecticut Law Tribune that all the anonymous criticism was genuine, that she knew the identity of each critic, and that lawyers want anonymity for their criticism not because they are cowardly but because any retribution judges might exact would come at the expense of the defense lawyers’ clients.

Such a rationale is weak in the face of due process, which is an absolute and includes the right to confront one’s  accusers. For that right easily can be maintained and defense lawyers and their clients easily can be protected  against retribution if, in any particular case, a lawyer moves to disqualify a judge he has criticized in an appointment proceeding.

A judge who had been so criticized and who declined to disqualify himself from a case involving a lawyer who had criticized him would be asking for trouble at reappointment time. Indeed, most judges might be more than fair to such critics.

Denying due process to judges, anonymous criticism is a problem not only before the Judiciary Committee but also before the Judicial Selection Commission, which screens judicial candidates and takes comment and deliberates about them in secret. The whole process should be conducted in public and its participants held accountable. That means no closed proceedings and no anonymous criticism.

    u    u    u

If a federal court decision involving a case from Mills High School in Burlington is allowed to stand, school administrators in Connecticut will have the power to punish students for criticizing them outside school. If, instead, Connecticut enacts legislation proposed by state Sen. Gary D. LeBeau, D-East Hartford, a retired teacher, students will regain freedom of speech outside school.

The case is that of Avery Doninger, who two years ago, as a junior at Mills High, complained in a posting on the Internet about the school administration’s cancellation of a school event. In the process she called administrators a name. They retaliated by knocking her off the ballot in the election for class secretary and then refusing to let her serve even when she was elected by write-in votes. (The administration tried to conceal her election, and throughout the controversy has withheld information and dissembled, as school administrations usually do when challenged.)

The administration complained that Doninger had disrupted and disgraced the school, but the only disruption was the inconvenience endured by the administration when it had to answer complaints Doninger’s Internet posting had encouraged about the cancellation of the school event. Such complaints were the result of political agitation, exactly what the First Amendment means to protect. As for the supposed disgrace, Doninger’s name calling, rude as it may have been, was mild, did not approach obscenity, was  apologized for, disrupted nothing, and took place outside school.

LeBeau’s bill would forbid schools from punishing students for electronic correspondence transmitted outside  school unless it contained threats. The bill should be  expanded to protect all student expression outside school.

The criminal law already provides all the protection schools need against threats and disruption.

School administrators can lord it over the kids on school grounds, and many become petty tyrants about whom feckless school boards do nothing. But school administrators are not free to try to run the kids’ lives elsewhere, and they deserve no more protection against criticism than anyone else in a democracy — which is none at all.

Chris Powell is managing editor of the Journal Inquirer in Manchester.