ACLU Backs Student's Facebook Insult Of Teacher

A California high school student who had been suspended last December after calling his teacher a “fat ass” on Facebook received the backing of the American Civil Liberties Union.

The ACLU released a letter today arguing that the school violated the student’s right to free speech on both state and federal counts, as well as the Education Code.

It had all began in December 2010, when sophomore honor student and star football player Donny Tobolski of Mesa Verde High School had an unusually large assignment of biology homework. Enraged, Tobolski posted a message on his Facebook page saying that his teacher, Mr. Cimino, was a “fat ass who should stop eating fast food, and is a douche bag.”

Somehow the Facebook activity was reported to the school authorities at Mesa Verde, who quickly categorized the post as “cyberbulling” and suspended Tobolski for a day.

But this post was published on the student’s own personal page, and after school hours. That’s why an ACLU attorney is claiming that the student’s writing constitutes protected speech — the First Amendment prevents school authorities from disciplining students’ based on their speech unless they seriously disrupt the learning environment.

The ACLU letter addressed to the school’s principal explains, “Donny’s Facebook posting posed no actual or threat of substantial and material disruption,” and was thus “was protected speech for which Donny may not be disciplined.” The legal organization then defined “cyberbulling” in the context of disciplinary action:

While “cyberbullying” is among the types of conduct subject to discipline, the posting here simply did not constitute “cyberbullying”, which is defined as electronic communications that involve sexual harassment, a hate crime, or creation of an intimidating or hostile educational environment.

The letter concludes with the ACLU asking Mesa Verde to expunge the student’s suspension “immediately.”

This isn’t the first time the ACLU has defended a student’s right to freely expressing feelings about school on Facebook during off hours. When student Katherine Evans was suspended in 2008 for calling her teacher “the worst I ever met” on Facebook, the ACLU filed a federal lawsuit against the school, and a settlement benefitting the student and erasing all suspensions from her records was finally reached last December.

With Facebook appearing to blur the line between public and private speech, do you think that Donny’s speech was indeed constitutionally protected, or was the school right in trying to set an example for other kids to not do the same? Was the school’s reaction unnecessarily severe?

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