Kowalski v. Berkeley County Schools: A School Can Discipline a Student for Creating a “Students Against Sluts Herpes” Website Without Violating the First Amendment
by Richard Fossey - August 29, 2011
Can a school discipline a student who constructed a social networking webpage to orchestrate a targeted attack on a classmate? Yes, says the Fourth Circuit Court of Appeals, at least in certain circumstances. If a student’s off-campus electronically delivered speech disrupts a school’s learning environment, school authorities can impose discipline. In Kowalski v. Berkeley County School District (2011), the court examined a high-school student’s discussion group webpage that other students used to engage in hateful and even defamatory speech toward a classmate. That kind of speech constitutes bullying and harassment, the Fourth Circuit ruled, and the school can suspend the student who created the webpage without offending the First Amendment.
Facts of the Kowalski Case
In December 2005, Kara Kowalski, a senior at Musselman High School, created a discussion group webpage on MySpace.com with the heading S.A.S.H., which she said was an acronym for Students Against Sluts Herpes. Under her webpages title, she posted this statement: No No Herpes, We dont want no herpes (p. 3). According to the court, Shay N., another Musselman student, was the main subject of discussion on Kowalskis webpage.
Kowalski invited approximately 100 people on her MySpace friends list to join the S.A.S.H. discussion group, and about two dozen Musselman High School students responded. In particular, Ray Parsons, a Musselman High School student, joined the S.A.S.H. discussion group from a school computer. He posted a photograph of himself and a friend holding their noses while exhibiting a sign that read, Shay Has Herpes, referring to Shay N. (p. 4). He also uploaded two edited photographs of Shay to the S.A.S.H. webpage. On one of the photos, Parsons drew red dots on Shays face to simulate herpes. He also added a sign near Shays pelvic region that read, Warning: Enter at your own risk (p. 4). Parsons captioned a second photo of Shay with a sign that read, portrait of a whore (p. 4). Other students posted comments approving of these photos.
Shays parents filed a harassment complaint about the webpage at Musselman High School, and Shay missed a day of school because she did not want to be exposed to the students who had harassed her on the webpage. Principal Ronald Stephens conducted an investigation. Kowalski admitted creating the S.A.S.H. webpage discussion group but she denied that she had posted any photographs or disparaging remarks.
Concluding that Kowalskis webpage activity had violated the schools Student Code of Conduct, which prohibited students from bullying or harassing other students, school officials suspended Kowalski from school for ten days (later reduced to five days) and prohibited her from participating in any school events in which she was not a direct participant for a period of 90 days. The school also banned Kowalski from the cheerleading squad for the remainder of the school year and prohibited her from crowning the next Queen of Charm in the schools Charm Review.
Kowalski sues, and the Fourth Circuit Sides with the School District
Kowalski sued, claiming school authorities violated her right to free speech under the First Amendment. Essentially, she argued that school officials had no authority to discipline her for expression that took place outside of school.
The Fourth Circuit Court of Appeals rejected Kowalskis arguments and upheld the trial courts decision to dismiss her case. In the Fourth Circuits view, schools have a compelling interest in regulating student speech that interferes with or disrupts the work and discipline of the school, including discipline for student harassment and bullying (p. 17, internal quotation marks omitted). Student-on-student bullying is a major concern in schools across the country, the court pointed out, and can cause victims to become depressed and anxious, to be afraid to go to school, and to have thoughts of suicide (p. 17). Consequently, the court concluded, school administrators must be able to prevent and punish harassment and bullying in order to provide a safe school environment conducive to learning (p. 18).
In the courts opinion, Kara Kowalskis speech disrupted the work of the school and was not entitled to First Amendment protection. Indeed, the court pointed out, Kowalskis role in the S.A.S.H. webpage incident was particularly mean-spirited and hateful (p. 29). Kowalskis web page called on classmates, in a pack, to target Shay N., knowing that it would be hurtful and damaging to her ability to sit with other students in class at Musselman High School and have a suitable learning experience (p. 29). In the Fourth Circuits view, the webpages disparaging remarks were indisputably harassing and bullying, in violation of Musselman High Schools regulations prohibiting such conduct (p. 30).
Conclusion: Online Bullying and Harassment Often Disrupts the Learning Environment
The Fourth Circuits Kowalski opinion is a good decision for both school authorities and students. Within the Fourth Circuits jurisdiction, a student who is the victim of online harassment can appeal to school authorities for help, and school authorities can discipline an online bully without fear of violating the First Amendment.
The court recognized that bullying and harassment that takes place off the school campus can disrupt the work of the school and interfere with the victims ability to learn. Indeed, bullying and harassment that takes place on a social networking web site is especially harmful because it can be dispersed more widely and more quickly than face-to-face taunting.
Unfortunately, not all federal courts see online bullying in the same way. Last year, a federal judge in California ruled that the Beverly Hills School District could not discipline a student who posted a video on YouTube that recorded her friends describing a thirteen-year-old classmate as a slut and a piece of shit (J.C. v. Beverly Hills Unified School District, 2010, p. 1098). Although the judge acknowledged that the victim of this mean-spirited video became hysterical, (p. 1122), he found no evidence that the YouTube posting had disrupted the work of the school in any substantial way. Therefore, the student had a constitutional right to post her YouTube video.
The facts in the Beverly Hills case and the Kowalski case are very similar. In both cases, a school disciplined a student for creating an electronic medium that other students used to describe a classmate as a slut. Why were the outcomes different?
In essence, the Beverly Hills court and the Kowalski court interpreted the Supreme Courts decision in Tinker v. Des Moines Independent Community School District (1969) differently. Tinker, we recall, upholds a students First Amendment right to free speech while at school unless school authorities reasonably conclude that the speech disrupts the school environment or interferes with the rights of other students.
The federal judge in California declared that a students YouTube video did not create a significant disruption at school, and thus school officials had no constitutional authority to punish the student who posted the video. In contrast, the Fourth Circuits Kowalski decision concluded that Kowalskis Students Against Sluts Herpes webpage was an act of bullying and harassment that disrupted her schools learning environment simply by interfering with the victims ability to learn.
Kowalski v. Berkeley County School District is an extremely important decision, because it recognizes that online bullying and harassment can disrupt a schools learning environment even when it occurs off the school grounds. If other federal courts follow the Fourth Circuits lead, school authorities all over the United States will have the authority to discipline students who bully their classmates online, and student cyberbullies will not be able to avoid punishment for hateful attacks on their classmates by hiding behind the First Amendment.
Kowalski v. Berkeley County Schools, No. 10-1098, 2011 U.S. App. LEXIS 15419 (4th Cir. July 27, 2001).
J.C. v. Beverly Hills Unified School District, 711 F. Supp. 2d 1094 (C.D. Cal. 2010).
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).