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Student punished for critical Facebook post can move forward with lawsuit

February 18, 2010

FLORIDA -- A former Florida high school student will now be able to move forward with a lawsuit against her principal after a federal magistrate ruled Feb. 12 that her Facebook post complaining about a teacher is constitutionally protected under the First Amendment.

Katherine Evans, a former student of Pembroke Pines Charter High School in Pembroke Pines, Fla., was suspended by her principal months after she made a Facebook page in 2007 about her Advanced Placement English teacher Sarah Phelps.

On the page, Evans wrote: "Ms. Sarah Phelps is the worst teacher I've ever met. To those students who have had the displeasure of having Ms. Sarah Phelps, or simply knowing her and her insane antics: Here is the place to express your feelings of hatred."

U.S. Magistrate Barry Garber's ruling denied the principal's motion to dismiss the case and his claims of qualified immunity. The case will now move into the discovery phase, according to Matthew Bavaro, an attorney with the American Civil Liberties Union, who is representing the student.

"I am confident that we will ultimately prevail in this case," Bavaro said.

Evans, now a sophomore at the University of Florida, removed the page two days later after three comments criticized her and supported Phelps, according to the court's opinion.

Principal Peter Bayer suspended Evans for three days for disruptive behavior and cyberbullying of a staff member. Bayer also removed her from AP classes, which carry bonus grade-point-average weight, and placed her in lesser-weighted classes.

Evans was not suspended until two months after she had deleted the page, the Miami Herald reported.

"In short, the potential spark of disruption had sputtered out, and all that remained was the opportunity to punish," Garber wrote in his order.

Evans filed a complaint in 2008 in the U.S. District Court for the Southern District of Florida, seeking a declaration that Bayer violated her constitutional rights, along with an order directing the school to purge all mention of the discipline from Evans' record, nominal monetary damages and attorney fees.

"Evans' speech falls under the wide umbrella of protected speech," Garber wrote. "It was an opinion of a student about a teacher, that was published off-campus ... was not lewd, vulgar, threatening, or advocating illegal or dangerous behavior."

SPLC Executive Director Frank LoMonte called this ruling "important to the future of journalism," and cited the importance of the Court's refusal "to say that just using coarse or unpleasant language is unprotected speech."

This ruling means that "schools can't claim authority over off-campus speech just because they contend the speech might reach people at the school," LoMonte said. "We can't have schools turning into the 'good conduct police.' "

Bavaro believes this case will "set a great precedent that schools cannot overreach and punish speech" done from home and done in a non-threatening manner.

Bavaro said Evans is not available for comment and is only seeking nominal damages.

"We don't want to make this case about money," he said. "We're just looking for a vindication of Katherine's rights."

Calls to Bayer's attorney and an e-mail to Bayer were not returned by press time.

By Stefanie Dazio, SPLC staff writer

For More Information:
  • Florida high school student files complaint after suspension for creating Facebook page critical of teacher News Flash, 12/09/2008

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