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Facebook Teacher-Bashing Is Protected Speech

(CN) - A South Florida student can sue her former high-school principal after he suspended her for three days for creating a Facebook group that criticized a teacher, a federal judge in Miami ruled.

During her senior year at Pembroke Pines Charter High School, Katherine Evans formed a Facebook group called "Ms. Sarah Phelps is the worst teacher I've ever met." She posted: "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."

Evans created the group after school hours from her home computer, and took the posting down after two days.

But it had been posted long enough for her principal, Peter Bayer, to take note. He suspended Evans for three days and moved her out of her advanced placement classes into "lesser weighted honors courses," according to the ruling.

School records stated that she'd been suspended for "Bullying/Cyber Bullying/Harassment towards a staff member" and "Disruptive behavior."

Evans claimed that the posting constituted a non-violent, off-campus activity, and that the punishment marred her academic reputation and good standing. She sued Bayer for alleged constitutional violations and asked the court to force him to destroy any record of her suspension.

Bayer argued that even if he wasn't protected by qualified immunity, he had been acting in his proper role in disciplining students for potentially disruptive behavior.

U.S. District Judge Barry Garber sided with Evans on her claim for nominal damages, saying her posting qualified as "off-campus" speech.

"[H]ere we have speech that was made off-campus, never accessed on-campus, and was no longer accessible when the defendant learned of it," Garber wrote, adding that "[n]othing in the complaint indicates that a well-founded expectation of disruption was present."

"Moreover, if school administrators were able to restrict speech based upon a concern for the potential of defamation, as Bayer claims, students everywhere would be prohibited from the slightest criticism of their teachers, whether inside or outside of the classroom," Garber wrote.

The judge allowed Evans to proceed on her claim for nominal damages, but dismissed her motion for an injunction against Bayer.

A plaintiff can't seek an injunction "against a defendant in his individual capacity if the act must be in his official capacity to have official consequences," Garber explained.

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