School learns lesson in Facebook case

Wednesday, December 29, 2010

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Let's just say this school has learned a lesson.

Pembroke Pines Charter High School in Florida has settled a First Amendment lawsuit brought by then-student Katherine “Katie” Evans after the principal suspended her for making negative comments on Facebook about a teacher.

In 2007 Evans, then a senior at Pembroke Pines, criticized her AP English teacher, Sarah Phelps, posting on her Facebook page comments including: “Ms. Sarah Phelps is the worst teacher I’ve ever met!” Evans removed the post a few days later, but Principal Peter Bayer suspended her for three days for violating the school’s cyberbullying/harassment policy. Bayer also removed Evans from AP-level classes.

Evans filed a federal lawsuit in 2008, contending that Bayer violated her First Amendment free-speech rights. In February 2010, U.S. Magistrate Judge Barry L. Garber issued an order refusing to dismiss Evans’ lawsuit.

Garber reasoned that Bayer had exceeded his authority in punishing Evans for off-campus, online speech that she did not access or distribute at school. He also noted that her online speech was not disruptive within the meaning of the U.S. Supreme Court’s seminal 1969 student-speech decision, Tinker v. Des Moines Independent Community School District.

“This Court finds that the facts are such that under any form of the Tinker test, Evans’s actions cannot be construed as even remotely disruptive, nor was her speech in any way lewd, vulgar, defamatory, promoting drug use or violence as seen in other cases,” Garber wrote.

In 2010, the school finally agreed to settle the case with Evans rather than go to trial. Under the settlement agreement that Evans signed on Nov. 10, the school agreed to remove any record of Evans’ suspension, pay her nominal damages of $1 dollar and pay $15,000 in attorney fees. The settlement, which became official when the school signed it in December, included “an agreement to expunge records,” including the initial incident report, the notice of suspension, Evans’ posting on Facebook, another incident form and a letter from Sarah Phelps.

Evans, now a student at the University of Florida, was pleased with the settlement, said her ACLU attorney, Matthew Bavaro, in an interview with the South Florida Sun Sentinel.

The Evans lawsuit and eventual settlement show that school officials cannot punish students simply because a principal or teacher is offended by students’ critical comments. The First Amendment gives students the right to criticize school officials. After all, the U.S. Supreme Court made clear in New York Times Co. v. Sullivan (1964) that the First Amendment must be understood in light of our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

That doesn't mean students can say anything they want on the Internet. If students defame others — such as by saying falsely that a teacher is a sex offender — then they can be sued in civil court. If they post true threats or harass other students, they may be subject to criminal penalties.

But the ordeal and eventual triumph of Katie Evans shows that school officials do not have carte blanche to do whatever they want when they don’t like student online speech.

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