Sometimes courts get it right with students’ First Amendment rights

Feb 17, 2010 Sometimes courts get it right with students’ First Amendment rights

Bill of Rights. (From the public domain.)

Sometimes courts wrongly underprotect students’ First Amendment rights. Of course, as to private schools, the First Amendment is not even implicated to those who run such schools.

Sometimes courts get it right, as with last week’s denial of a dismissal to a civil defendant/ high school principal for disciplining a student for posting a Facebook page with more than unflattering comments about one of the teachers at the school. Evans v. Bayer, ___ F.Supp.2d ___ (S.D. FL, Feb. 12, 2010).

In Evans, high school student Evans never used school property to produce nor display the Facebook page, and actually had the Facebook page removed before the school administration ever saw it.

Suffice it to say, last Friday, a federal magistrate judge made an excellent decision to refuse dismissal of this suit, in which Evans seeks relief against principal Bayer. Here are links to this case:

– The court order denying full dismissal of the case.

– Evans’s court complaint in the case.

– Bayer’s failed motion to dismiss the case.

– Evans’s opposition to Bayer’s opposition motion. Jon Katz

ADDENDUM I: Thanks to a listserv member for circulating an article on this Evans case.

ADDENDUM II: Following is some particularly noteworthy language from the foregoing Evan case:

As noted, this is not a novel situation and has been dealt with by other courts. But here we have speech that was made off-campus, never accessed on-campus, and was no longer accessible when the Defendant learned of it…

One of the most recent decisions regarding internet student speech is instructive. In Layshock v. Hermitage School District, the Third Circuit examined whether a school district can punish a student for expressive conduct that originated outside of the classroom, when that conduct did not disturb the school environment and was not related to any school sponsored event. Nos. 07-4465, 07-4555, 2010 WL 376184, at *1 (3d Cir. Feb. 4, 2010). Justin Layshock created a fictitious profile of his school’s principal on Myspace, another social networking website. Layshock used the principal’s photo from the school website and gave fake answers to various questions. The profile was created after school hours and off-campus, at Layshock’s grandmother’s house…

Regardless of the standard used, Evans’s speech falls under the wide umbrella of protected speech. It was an opinion of a student 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. Therefore, the Court finds that Evans had a constitutional right. The next inquiry is whether it was a clearly established right.

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