School Punishment of Online Speech: Evans v. Bayer
By Stuart K. Tubis – Edited by Frank Sabatini
Evans v. Bayer, No. 08-61952-CIV-GARBER (S.D. Fla. February 12, 2010)
The District Court for the Southern District of Florida granted in part and denied in part defendant’s motion to dismiss. The court dismissed the claim for injunctive relief to prevent Bayer from maintaining records of the suspension and to compel him to revoke the suspension nunc pro tunc. The court held that it cannot compel someone in her personal capacity to take official action. Nonetheless, the court denied defendant’s motion to dismiss the claim for nominal damages, holding that the action was “off-campus activity” and protected by the First Amendment.
A NY Times article provides a general overview of the case. Wired and CNN also provide summaries of the case with limited legal analysis. Jon Katz writes in approval of the opinion emphasizing the frequent underprotection of First Amendment rights in schools.
Plaintiff Katherine Evans was a senior at Pembroke Pines Charter High School when she created a group on the social networking site Facebook about her teacher, Sarah Phelps. The group was entitled “Ms. Sarah Phelps is the worst teacher I’ve ever met” and encouraged others to express their negative feelings of Phelps. The posting was made after school hours from Evans’ home computer. It was not accessed at school and did not disrupt school activities. The posting was removed after two days. Defendant, Bayer, the school principal, later learned of the posting and suspended Evans from school for three days. Evans then brought suit seeking 1) an injunction a) preventing Bayer from maintaining records relating to the suspension and b) revoking the suspension nunc pro tunc; and 2) nominal damages and legal fees. Bayer then filed a motion to dismiss pursuant to Federal Rule 12(b)(6).
The court granted the motion to dismiss the injunction, reasoning that the court could not compel official action in a suit against an individual in his personal capacity. The court did, however, provide leave “to file an amended complaint naming the proper parties.” With respect to Evans’ claim for damages, the court denied Bayer’s motion to dismiss, holding that her constitutional rights had been violated. Although Bayer was acting under qualified immunity, such immunity can be overcome by showing that the defendant violated a clearly established constitutional right. The court then analyzed Evans’ First Amendment claim. The court held that First Amendment rights are stronger for public school students’ off-campus expressions than on-campus expression. Because Evans had made the posting at home, without any on-campus disruption, and without showing it to others at school, the court found that the posting was made off-campus. The court then held that Evans’ speech was protected by the First Amendment’s right to “freedom of expression.” In so doing, the court dismissed several arguments by Bayer. On such argument, that the posting was unprotected libel, was defeated by the rule that pure opinion is not defamation. The court lastly concluded that the constitutional right was clearly established in this case. Thus, the motion to dismiss the damages claim was denied.
The case has been closely watched by legal experts in the field of online privacy and communication. The holding is significant because it more clearly delineates the line between what forms of online speech a school can and cannot regulate, an issue that was also addressed in two recent decisions, Layshock v. Hermitage School District and Snyder v. Blue Mountain School District (covered by JOLT Digest here). The case strengthens the general concept that schools cannot punish students for online activity occurring outside of the school (as long as it does not disrupt school functioning). Hopefully, future jurisprudence will help clarify this still uncertain boundary.