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Student's Facebook insult triggers First Amendment clash

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Donny Tobolski will never look at the share button on Facebook the same.

In December, the 15-year-old sophomore at Mesa Verde High decided to post on his Facebook page that his honors biology teacher was a "fat a** who should stop eating fast food, and is a douche bag."

These type of remarks may be as typical to school kids as a tack in a teacher's chair. But when the comments made it back to Mesa Verde High officials, the Sacramento-area school charged Donny with cyberbullying. On Dec. 2, Tobolski was suspended at the urging of San Juan Unified School District staff.

Kristina Dunlap, Donny's mother, was livid. She felt the school was overreaching. Worse, by branding Donny a bully, Dunlap worried that a childish yet nonthreatening remark would permanently damage her son's future.

"We never encourage him to speak of any authority figures like that. That's not right. We don't condone that," Dunlap said. "But that's our business to handle at home. I can ground him for a month, and he can learn his lesson."

A family friend suggested Dunlap call the ACLU for help. In August 2008, California passed AB 86, one of the first laws in the country to deal directly with cyberbullying. The legislation gives school administrators the authority to discipline students for bullying others offline or online.

But was this cyberbullying? ACLU attorney Linda Lye didn't think so. After talking with Dunlap, she fired off a letter to San Juan Unified, demanding the school expunge Tobolski's record or face a lawsuit. The basis? A series of court rulings that said students had the right to free speech, even when it was objectionable.

Last week, San Juan Unified wrote back, agreeing to erase the mark on Tobolski's record. And Dunlap got a call from the principal, apologizing.

District spokesman Trent Allen said Mesa Verde's principal reviewed the case and found Tobolski's words did not constitute cyberbullying. In an e-mail to California Watch, Allen wrote:

In reviewing the facts of the situation, the principal determined that this was not an offense that warranted a suspension as it does not meet the requirement of causing a disruption to the school environment.

This case has been debriefed by those involved to clarify the threshold required for suspension and avoid similar issues in the future.

Lye said she wouldn't be surprised to see more cases of schools going after students for online activity, because technology advances seem to always spark what she called "age-old free speech battles."

In the age of Facebook and Twitter, Lye said schools may not realize that "virtual world speech" has the same protections under the First Amendment as "real world speech."

"You don't shed your free speech rights by going on Facebook," she said.

 

2010.12.30 Letter to Mesa Verde High School re Donny Tobolski(2)

 

 

Mesa Verde - expunged

 

Filed under: K–12, Daily Report

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