ACLU backs suspended student's right to call teacher 'fat' on Facebook

A high school student's suspension for calling his teacher fat on Facebook has sparked off a debate on the freedom of speech. The American Civil Liberties Union (ACLU) has stepped into the matter arguing that the school violated the student's free speech rights granted by the state and federal constitution as well as the Education Code.

Donny Tobolski of Mesa Verde High School invited the ire of the school authorities for posting a rude comment on his teacher on the social networking site in December 2010. His Facebook post described his teacher, identified as Mr. Cimino, as a fat ass who should stop eating fast food, and is a douche bag. The school suspended Donny for a day citing that his post constituted cyberbullying.

This disciplinary action, however, did not fit in well with the ACLU. The union shot off a letter to the Principal Rick Messer accusing the school of violating Donny's rights and asserting that the matter is of serious concern due to the special role of freedom of speech in the American democracy.

The facts of this case are simple. Donny posted on his Facebook page, from a computer at his home and during non-school hours, a message about one of his teachers, Mr. Cimino, the union argues in the letter with an intention to stress on the fact that the student was forced to face consequences for something he did outside the school premises.

The First Amendment gives schools the power to discipline students for speech only if it creates material and substantial disruption of school environment. California also upholds the students' right to exercise freedom of speech and of the press. The Education Code prohibits schools from disciplining students for speech engaged outside of the campus as established by the First Amendment to the United States constitution or Section 2 of Article I of the California Constitution.

The letter also goes on to rubbish the argument of cyberbullying used by the school to suspend Donny.

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 establishes.

Noting that the disciplinary action against Donny for protected speech exposes the school to potential suit and liability for attorney's fees, the ACLU has demanded that Donny's suspension should be expunged from his record immediately.

While disciplinarians may argue that the child needed to face the consequences of his rude behavior, the case reflects a larger problem of freedom of speech on the internet. Donny's is not the first case of an institution imposing disciplinary action for comments on the social networking site. In November 2010, a company set off a similar debate when it terminated an employee for deriding her boss on Facebook. The National Labor Relations Board intervened into a case declaring that the posts on the social networking site - even if negative - are legally protected speech. Furthermore, dishing out a huge blow to the continual efforts of companies to enforce social media policies, NLRB had stated that social media policies that prohibit making negative remarks about one's boss or company online are actually in violation of labor laws that protect employees' right to talk about things like wages and working conditions.

However, the federal agency did clarify Facebook comments can lose protected status based on where the discussion takes place, the subject matter, the nature of the outburst and whether the comments were provoked by an employer's unfair labor practice.

In another case, a former Florida high senior was disciplined for cyberbullying a teacher on Facebook by creating a group for her English teacher, called 'Ms. Sarah Phelps is the worst teacher I've ever met!' Katherine Evans, who fought the case even two years after her suspension, got legal backing from the First Amendment.

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, Magistrate Barry Garber of Florida had ruled in February 2010.