Student punished for critical Facebook post can move forward with lawsuit

FLORIDA — A former Florida high school student will now beable to move forward with a lawsuit against her principal after a federalmagistrate ruled Feb. 12 that her Facebook post complaining about a teacher isconstitutionally protected under the First Amendment.

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

On the page, Evans wrote: “Ms. Sarah Phelps is the worst teacherI’ve ever met. To those students who have had the displeasure of havingMs. Sarah Phelps, or simply knowing her and her insane antics: Here is the placeto express your feelings of hatred.”

U.S. Magistrate Barry Garber’s ruling denied the principal’smotion to dismiss the case and his claims of qualified immunity. The case willnow move into the discovery phase, according to Matthew Bavaro, an attorney withthe 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 twodays later after three comments criticized her and supported Phelps, accordingto the court’s opinion.

Principal Peter Bayer suspended Evans for three days for disruptivebehavior and cyberbullying of a staff member. Bayer also removed her from APclasses, which carry bonus grade-point-average weight, and placed her inlesser-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 allthat 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 SouthernDistrict of Florida, seeking a declaration that Bayer violated herconstitutional rights, along with an order directing the school to purge allmention of the discipline from Evans’ record, nominal monetary damages andattorney fees.

“Evans’ speech falls under the wide umbrella of protected speech,” Garberwrote. “It was an opinion of a student about a teacher, that was publishedoff-campus … was not lewd, vulgar, threatening, or advocating illegal ordangerous behavior.”

SPLC Executive Director Frank LoMonte called this ruling “importantto the future of journalism,” and cited the importance of theCourt’s refusal “to say that just using coarse or unpleasantlanguage is unprotected speech.”

This ruling means that “schools can’t claim authority overoff-campus speech just because they contend the speech might reach people at theschool,” LoMonte said. “We can’t have schools turning into the ‘good conduct police.’ “

Bavaro believes this case will “set a great precedent that schoolscannot overreach and punish speech” done from home and done in anon-threatening manner.

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

“We don’t want to make this case about money,” he said.

“We’re just looking for a vindication of Katherine’srights.”

Calls to Bayer’s attorney and an e-mail to Bayer were not returned bypress time.