Student wins Facebook suit against school

For any high school or university student who “Facebooks” (apparently now a verb), a recent decision by a federal magistrate in Florida should come as welcome news.   The magistrate’s February 12th ruling supported the right of a student to post an entry on Facebook critical of her English teacher.  The Facebook entry, posted by then-senior Katherine Evans in November 2007, contained nothing obscene or inapproriate, nor did it counsel violence or any other improper act; it simply vented Ms. Evans’ frustration that the teacher, Sarah Phelps, was “the worst teacher” she’d ever had. 

For having the audacity to post such an opinion on her own — not the school’s — Facebook page, Ms. Evans was suspended and moved from her advanced placement English class into another, less-weighted class.  The specific reasons for these disciplinary actions included “cyberbullying,” “harassment,” and “disruptive behavior.”   That’s right.  A student who criticizes a teacher on her own computer and on her own time (not while in school), was deemed by Pembroke Pines Charter High School to be engaged in “cyberbullying” against an adult teacher. 

While the English teacher to whom Ms. Evans directed her disdain may have been such a timid type that simply having her teaching methods criticized on Facebook caused her great angst, the high school’s gross overreaction that included harm to the student’s academic career, should not be allowed to stand.  In disallowing the school’s attempt to dismiss the lawsuit subsequently brought against it by the student to clear her record (and thereby permitting the suit to proceed), the federal court in Miami has struck a blow not only in support of free speech, but in defense of common sense as well.

76 comments Add your comment

Mrs. Norris

February 26th, 2010
8:33 pm

1st Amendment makes a very good point. I would like to add that the teacher is paid to teach and the student is not paid to be a student. Therefore, there is less to be expected from her. For example, I am a receptionist and I am paid to be nice to people, even when I don’t feel like them. They are not obligated to be nice to me. I can’t sue them if they tell me I’m the worst receptionist they have ever met and neither will my employer try to punish the customer. Let’s not forget who works for who. Also, I would hope adults would be more mature than teenagers.

Having said that, I do wish people would stop putting all their business on the internet. What’s up with that? As far as cyberbullying, the great thing about the internet is you can easily ignore it. When I was a young girl a bully was right there in your face and unless you could run faster than they, you were in danger of bodily harm.

Scout

February 26th, 2010
8:35 pm

This is obviously a free speech issue but is exactly what happens when you allow two things:

1) the “zero tolerance” mindset to permeate our schools.

2) “hate speech” legislation to punish people not for the crime they committed but the thoughts in their mind.

Both a very slippery slopes and it’s time we put and end to them ……………………

http://www.youtube.com/watch?v=M_bvT-DGcWw

Mrs. Floyd

February 26th, 2010
9:20 pm

Just another brick in the wall.

Scout

February 26th, 2010
9:32 pm

Mrs. Floyd:

Exactly ………………… :o )

Mrs. Floyd

February 26th, 2010
9:49 pm

Scout, you make two very good points and I love the video. I should have watched the video before I made my redundant remark. The world would be a better place if people would listen to Pink Floyd. Ah, the prophet is not appreciated in his own time and place.

Scout

February 27th, 2010
3:16 pm

My daughter taught math to 7th and 8th graders right after she graduated from college. After one year, she said “Dad I’ll never teach again”. I said, “Were the kids that bad? Maybe you should teach 3rd grade or something.”

Her reply was, “It’s the parents I can’t take.”

vracer

February 28th, 2010
8:09 am

Where are her parents? Good manners should have precluded that insulting behavior. Children running amok.

david wayne osedach

February 28th, 2010
8:51 am

There should be very clear limits as to what can be posted on Facebook by students about their teachers.

And...

February 28th, 2010
1:02 pm

there should be very clear expiration dates to those who would limit what people can think, type, write, sing, pamphlet, publish, or express. There should be civics classes or something for those who cannot seem to understand that many a farmer or tradesman in our country people fought and for the ability to “speak truth to power” to boldly call a king a prince or a tyrant. No thank you for your exhortations to instill prior injunctions, content-related censorship. No thank you for any efforts to have everyone be “civil,” “nice” “respectful,” “polite,” “intelligent, “agreeable,” or harmonious. If a staunch conservative like Justice Scalia can overturn an anti-flag burning amendment, there is hope as long as the sheeple do not dither away their rights in worrying about how much they might offend in trying to speak what they consider to be the truth.

There has been quite a bit of time in these posts discussing the First Amendment, which is good, but what we should also focus on is a naked abuse of state power, including but not limited to the school’s crossing a very bright line to make an incursion into a student’s outside life, meting out a punishment, and engaging in a police power not granted either explicitly or implicitly. The administrators and the school board that wasted tax dollars fighting something to uphold something they were egregiously wrong in doing should be fired. Further, Georgia should strengthen its anti- SLAPP legislation to make it easier for defendants to protect themselves in most any case where state or corporate entities are trying to stifle expression, offering not just protection at public meetings or for matters under review (GA. CODE ANN. § 9-11-11.1 (1996)).

Ace

February 28th, 2010
9:24 pm

Free speech means you won’t go to jail for saying you mind, but you can’t govern people any more than they will allow and they will “pay you back” for running you mouth. Speech has concequenses. This is real life fact. If you don’t belive it, just run your mouth as see where it will land you. The cold truth.

Angry Moderate

March 1st, 2010
11:43 am

ugaaccountant:

If you’re going to quote the Founding Fathers, make an effort to get it correct. The word you want is “unalienable,” and it appears in the Declaration of Independence, not the First Amendment to the Constitution regarding free speech.

1st Amendment:

You said: “However, one would, for hopefully obvious reasons, expect professionalism from a teacher, but a student needn’t be ‘professional’ in her criticism of an allegedly poor teacher.” That’s a double-standard, and you have my thanks for demonstrating my point.

This may not have been “fire in a crowded theatre,” but remarks like this from a student can have serious consequences on a teacher’s professional career. I’ve seen it firsthand. And while we’re on the topic of straw men, you should read my posts a little more carefully before you accuse me of a particular position.

Erica Nadon

March 1st, 2010
12:21 pm

Daniel, your comment is overprotective of our government. Being an American gives us this right and we may use it however we please. It is insane to think that the prevention of criticism of politicians or world leaders is possible in our country. We see this criticism every day from students, teachers, radio hosts, tv personnel, and then when we go home in our families. The first amendment allows us to have an opinion. That is an amazing opportunity that most countries have never seen. No one should be afraid of that. Why don’t you move to Cuba. No one is allowed to insult their authority or dictators there…

1st Amendment

March 2nd, 2010
1:11 am

Angry Moderate: Call it what you want–a double standard, grossly unfair, downright mean, nasty, or whatever you want. Lie on the ground and pound your fists and whine. You asked previously: “To those touting this case as a victory for free speech, I ask you this. How would you feel about Sarah Phelps creating a Facebook group called “Katie Evans is the worst student I’ve ever taught!”? Is that protected speech, or is there some kind of double standard?” It is inane to call both positions mutually exclusive. It can be at once “a victory (touted or not) for free speech,” protected speech,” and a double standard. It becomes straw when you impose a condition (it ruins careers) and assert that it stems from and negates the original condition/assertion (it’s a first amendment victory). Quibbling over rhetorical nomenclature does not negate the fact that the school stepped far over its limits (as well stated by And…. above) in trying to stifle the speech and impose punishment for acts it had no personal or subject matter jurisdiction to over in the first place, which is outside speech.

The fact that we expect children to act differently than adults should come as no surprise. Note the differences in insurance rates, the ability to enter contracts usually only when one reaches majority or is in some other way emancipated below majority. Yes, there is a different, if you want to say “double” standard, fine.

Teachers entering the profession assume the risk that students will not like them and will speak ill of them. Every educator, administrator, or quasi-public officials walks the line of being liked and doing a good job. One would hope this teacher’s career could not be ruined by one limited FaceBook posting, but admittedly it happens, especially if it is teacher-submitted content (cf the Ashley Payne case from Barrow country for showing alcohol and using “profanity on her site. In another case, a teacher is currently suspended in NC for saying something intemperate about her students on FaceBook http://blogs.babble.com/strollerderby/2010/02/17/teacher-suspended-for-having-opinion-on-facebook/). However, these teachers also have constitutional rights and can make and defend their assertions legally, as much as any student. These teachers are citizens and the speech just as protected. Most students are fairly judgment proof, but the [public] school that fire or blemish the records of these teachers are and should be fair game.

Lastly, in looking at remedies, consider a court saying, “Ms. Evans, you once held an opinion that we have determined was hateful, immature, and could have cost a teacher you considered incompetent her job. You take it back right now!!” That’s a free republic? That’s what we’re after? That’s moderate? The school is in the wrong; it was adjudicated to be so in the courts, and on we go with the lawsuit.

Carolyn

March 4th, 2010
10:39 am

I think that this is more about teenage emotion and immaturity and less about free speech. Kids don’t listen or don’t get that what they do online or with their phones can get them in “hot water”. This could have been a teaching moment- ironic huh? To clarify- perhaps a stern- hey- we’ll let this go this time- but you got caught and how would you feel if someone posted something insult about you? I think that the punishment was way too harsh for a venting, impulsive, moment. Same with sexting- most teens don’t realize that it is a FELONY in all states- even if you send or post pics of yourself… one kid got charged with child pornography for posting pics of herself! Let’s work on educating our kids more about the internet and cell phone texting and what the repercussions are…what the penalties are… I think they need to have a required technology class with this as part of the curriculum…

Whats Fair?

March 4th, 2010
10:47 am

So, Now all teachers at home can create a Facebook account and express their freedom to discribe how terrible their students and their students parent are. What a Joke!!

You Asked

March 4th, 2010
11:37 am

Teachers just need to understand that students today use facebook, PDFs and phones like they used to pass notes in class. The speech hasn’t changed just the media.

I am trained as an educator (still have my certificate) but went on to work as a businessman and now public servant. Why? I loved teaching the students – even the pain in the butt kind. It was the bureucratic nonsense the other teachers and administrators dished out that I couldn’t stand. Teachers are the best and the worst of the adult world. They can be selfless, optimistic, creative, inspiring and loving. They can also be power hungry, unaccountable, selfish, boring, bureaucratic and lazy (multiply it when protected by tenure).

Guess what kind of teacher tries to expell a student for saying something unflattering about their teaching?

krn

March 4th, 2010
12:21 pm

Daniel,

It’s called freedom of speech. Get a life.

Lewis Lonaker

March 4th, 2010
5:09 pm

Well,I don’t really care what one thinks on free speech.Because I am one who will say what I thinkon here or to ones face.And they can take it or leave it as it may!!Just like my blogs on facebook on Obama,Pelosi and all the rest of the crooks and socialist running washington.I said that to say this,I stand by the student!!

GT Marshal

March 4th, 2010
6:42 pm

According to Roberts and the most conservative justices, students do not have a constitutional right of free speech even when not on school grounds. In Morse v. Frederick, the conservatives stated several technicalities allowing them to penalize free expression. Roberts has repeatedly proven that he likes to redefine precedent, and there is nothing stopping him and his colleagues from continually adding exceptions to our rights and further restricting expression. Of course, that does not include expression by corporations-citizens.

Bong Hits for Jesus

March 5th, 2010
8:21 am

Interesting points, GT Marshall. Thanks for really adding to the discussion with some salient material!

While I agree with you that corporations have been given waay too much power through the Kilo case (your house for Walmart), I do not think Morse v. Frederick is as broadly restrictive as your description makes it sound.

Justice Roberts, who wrote the majority opinion. Six of the nine justices either joined (2) or concurred (3), at least in part, with the opinion. Breyer consented in part and dissented in part. It was Justice Thomas, not CJ Roberts who opined “In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools.” It is important to note that it is the opinion of the court that binds, and that only in the holding. The rest is dicta, which does not bind the court, lower courts, or citizens.

Just as it is not an absolute right for adults, speech for students has its limits. In Morse, a student was at a school event and was advocating, promoting, and advertising the use if drugs, which was expressly prohibited in school policy (and there was likely a public safety “hook” to this such as trying to discourage drug/gang/associated activities).

The Morse case is fairly easily distinguished from the case under discussion above because for several reasons:
1) The student in trouble was not no school grounds
2) The student/plaintiff was not at a student event
3) The student was expressing an opinion unlikely to “”materially and substantially disrupt the work and discipline of the school,”

It is worth noting that the Tinker decision (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=393&invol=503) still stands; the current court did not overturn it. The fact that students will get in trouble for profanity, lewdness, and for breaking policies should not come as a surprise to students or anyone else following the Bethel School DIST. NO. 403 v. FRASER, 478 U.S. 675, which was decided in ‘86, when Roberts and the evil conservatives were not present. According to that case, students can’t make a speech that turns a student government campaign into soft porn (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=478&invol=675).

Redefining precedent is not always bad. Ask anyone who is enjoying a drink right now in a desegregated “dram shop.” If indeed Roberts is redefining precedent, there are several things to stop him, including the other justices, precedent itself, and two other branches of government.

Is it now time to make a Georgia Tech Joke because of the GT Marshal moniker, or can I break tradition on the blog and just leave your good post to stand on its own?

Ghent

March 8th, 2010
1:45 pm

The Freedom of Speech does not protect libel and slander. In the quasi-public forum of the internet and Facebook specifically, children and adults both are allowed to “publish” anything they desire. Children should either be subject to the same libel laws as adults, or prohibited (”protected”) from using such a medium of communication under the premise that they do not know how responsibly and legally to use it as adults would.

True, teacher and administrators acted somewhat as children in response to a child’s childish act. Nothing is gained, and a true life-lesson moment is lost. Reminds me of the movie “Election”. Sad.

The kid was wrong. Too many court cases like this, and we will be subject to, rather than subject over, a lawless, irresponsible, and defiant youth. (I am only 30 yrs old, mind you)

Doug

March 9th, 2010
12:07 am

This is possibly one of the few times an American court decision actually makes sense in law, but going by the comments, a lot of people in America are badly in need of a reality check and some more heavy psychotherapy sessions as the ones they’ve had so far obviously aren’t working. hehehe

Bob

March 10th, 2010
9:31 am

Are we teaching our kids that if you are in a position of authority you have to right to spy on the public and punish those that state opinions that you don’t like? The student stated her opinion OUT OF SCHOOL. It was the teacher that was trolling for negative opinions against her. How would you like itif our boss started spying on you outside of work to find out who was saying bad things about them? What happened to being allowed to state your opinion on your own time?

On this board it seems like people are saying ANY student should NEVER at ANY TIME say they hate a teacher but we can say horrible things about the president? Get a grip people!

Tom

March 16th, 2010
8:44 pm

@ghent: And what would make it libel? That she called this teacher the worst teacher she’s ever had? First, you’ll have to prove it’s not true. And then, you’ll have to prove harm.

Jk

March 18th, 2010
1:12 pm

Mom

July 20th, 2010
10:50 am

Unfortunately schools all over the nation are over-reacting and treating our children like criminals, on a DAILY basis. In my county a 6 year old girl was handcuffed AND arrested!