California high school student’s suit challenges disciplinary action for off-campus Facebook activity

Jacob Fleener, a student at Clovis West High School (CWHS), charges that school officials had school district police arrest and interrogate him, then suspended him for 15 days for logging onto a Facebook page that parodied the school’s principal, says Courthouse News Service.  He says he didn’t create the parody, and never logged onto the Facebook page with school computers, or during school hours or on school property. Fleener and his parents have brought suit in Fresno County Court against CWHS, the Clovis School District (CSD), Clovis High principal Benjamin Drati, and the district’s Director of Student Services, Gregory Bass.

Fleener alleges he “was removed from his English class by a district police officer and a Clovis SRC [Student Resource Center] employee” in February 2010. After being detained and questioned  by CSD police officers, during which his cell phone was confiscated, he was released into the custody of his father, who was given a letter signed by Clovis West’s learning director.  The letter said, “Jacob participated in an activity that led to [his] arrest for ID theft,” and that Jacob was being suspended for five days, and was being considered for transfer to “alternative education” for allegations of disrupting school activities, disruptive behavior, malicious defamation of school personnel, bullying, harassment, threats and intimidation.

“The incident which led to all of the foregoing was Jacob’s minimal participation in a Facebook parody of Clovis West principal Ben Drati,” the complaint states. “Jacob did not create the Drati Facebook page. He was given the log-in information after the fact by the two other Clovis West students who created the Facebook page, and logged onto the page on five occasions over a several week period in approximately November 2009, and made posts. Jacob did not use any school computers to log-on or post to the Facebook page, and never did so during school hours or while on school property.”

The Fleeners say that Drati and other school administrators refused to meet with them until after Jacob had served his five-day suspension.  The Fleeners say they appealed the forced transfer, but the district refused to let him return to Clovis West High School. Three days later, the district reversed itself.  Officials said Jacob could return to his school and could make up the course work and tests he had missed, and the district would “expunge, rescind and remove Jacob’s purported arrest by the district police services from his files.” The school district promised “not to engage in any retaliatory activities.”  But that didn’t happen, the family says. They say his arrest record was not “completely removed from his files,” which they found out only after the district refused to comply with their public records request, and the Fresno Superior Court ordered the school to release it.

The parents allege that “although the District Attorney’s Office determined that no crime had been committed and therefore declined to pursue the matter (even though defendants were pushing to have Jacob prosecuted for felony identity theft) and although defendants had been informed of the DA Office’s decision, defendants continued to publicly assert that Jacob had committed various crimes, including identity theft and cyber-bullying.” They contend that because Jacob “did not use school equipment and was not on school grounds or school time when he made the parody Facebook posts, he was not within the jurisdiction of the principal nor engaged in school activity or attendance, and his suspension was wrongful.”

The Fleeners seek punitive damages for slander, negligence, intentional infliction of emotional distress, violations of the California Education Code and state constitutional violations.

Source: Courthouse News Service, 5/10/11, By Iulia Filip

[Editor's Note:  A large portion of the published court opinions addressing public school officials disciplining students for online off-campus speech involve criticism or vulgar parodies of school staff.  The California suit reported above alleges only state constitutional violations, including a claim under the state constitution's free speech guarantee.

In April 2011, a U.S. Court of Appeals for the Second Circuit (NY, VT, CT) three-judge panel ruled that school officials who disciplined a student for vulgar postings on her off-campus blog and later refused to allow her to wear a T-shirt in school commenting on the controversy, were entitled to qualified immunity from both of the student's (federal) First Amendment claims. The panel concluded that the law is not clearly established that officials can not regulate student speech that occurs off-campus. A summary of the opinion is available at the first link below.

In February 2011, International Business Times reported on a California school district that had suspended a high school student for making insulting comments about a teacher on the student's Facebook page . The American Civil Liberties Union (ACLU) subsequently stepped into the matter, contending that the school violated the student’s free speech rights granted by the state and federal constitution as well as the California Education Code. ACLU sent a letter to the principal charging the school with violating the student’s rights and asserting that the matter is of serious concern due to the “special role of freedom of speech” in the American democracy. A summary of the article is available at the second link below.

In December 2010, On Point reported that Pembroke Pines Charter High School (PPCHS) in Florida had agreed to settle a (federal) free speech suit brought by former student Katherine Evans. Evans was suspended by PPCHS Principal Peter Bayer after she used her home computer to write, “Ms. Sarah Phelps is the worst teacher I’ve ever met!” in a Facebook posting. As part of the settlement, PPCHS will expunge Evans’ three-day suspension from her disciplinary record. The school has also agreed to pay Evans $1 in nominal damages and $15,000 in attorney's fees.

Although Bayer had argued in federal district court that the suspension was justified on the grounds Evans’ online rant was not protected speech in part because of its “potentially defamatory content,”  the court, in February 2010, denied his motion to dismiss the suit.  The court found 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.”  A summary of the opinion is at the third link below. Read the editor's note for further background on the suit and similar cases to be decided by the Third Circuit.

The Fleeners' legal complaint filed in California state court is available at the fourth link below.]

NSBA Legal Clips archive on Doninger v. Niehoff

NSBA Legal Clips archive on student Facebook suit

NSBA Legal Clips archive on Evans v. Bayer settlement

Legal complaint

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