A former Florida high-school student is officially no longer a cyberbully after winning a settlement in her free-speech lawsuit against a principal who disciplined her for venting about a teacher on a Facebook page.

Katie Evans

The settlement provides, among other things, that Pembroke Pines Charter High School will expunge Katherine "Katie" Evans's three-day suspension from her disciplinary record. The principal, Peter Bayer, suspended her for cyberbullying after she used her home computer to write “Ms. Sarah Phelps is the worst teacher I’ve ever met!” in a Facebook posting.

Under Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), a “showing that the students’ activities would materially and substantially disrupt the work and discipline of the school” is necessary to justify suppression of student expression.

Bayer argued that Evans's online rant was not protected speech in part because of its “potentially defamatory content.” But a judge denied his motion to dismiss in February, finding that Evans expressed an opinion about a teacher that “was published off-campus, did not cause any disruption on-campus, and was not lewd, vulgar, threatening, or advocating illegal or dangerous behavior.”

As part of the settlement, Pembroke Pines will also pay Evans $1 in nominal damages — she had not asked for any compensatory damages — and $15,000 in attorney fees.

“This case was very important” for setting guidelines on student speech, says Evans attorney Matthew Bavaro (Bavaro Legal, Fort Lauderdale), “especially where the speech happened off-campus.”

In his ruling, U.S. Magistrate Judge Barry L. Garber also said Bayer's actions in suspending Evans “[did] not even comport with the requirements for the regulation of on-campus speech ... [T]he facts are such that under any form of the Tinker test, Evans’s actions cannot be construed as even remotely disruptive.”

The U.S. Supreme Court has yet to address a student speech case involving extra-curricular expression on social networking websites. The 2nd U.S. Circuit Court of Appeals is now considering Doninger v. Niehoff, while the 3rd Circuit has two similar cases on its en banc docket — Layshock v. Hermitage Sch. Dist. and J.S. v. Blue Mountain Sch. Dist.

“There probably hasn't been a student who hasn't criticized a teacher,” notes Bavaro. “Schools need to adjust to the new techniques of communication.”

In Indiana, two girls have challenged a policy that allows the principal of Churubusco High School to punish students for conduct “in school or out of school that brings discredit or dishonor upon [the student] or the school.” They were disciplined under the policy for posting raunchy photos of themselves on Facebook.

“[C]ourts have held that expressive activity that is not a threat and takes place entirely off of school grounds cannot be used to discipline a student unless the activity becomes substantially disruptive in the school,” the girls, identified only as T.V. and M.K., say in a motion for partial summary judgment.

Evans, who is now a college student, created a Facebook group entitled “Ms. Sarah Phelps is the worst teacher I’ve ever met!” In her post, she also wrote, “To those select 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.”

Bullying requires “repeated instances of intimidation,” Bavaro says. “This was one simple post. And it was taken down within 24 hours.”

By Matthew Heller
12/22/10