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Fourth Circuit Finds Student's Creation of MySpace Page Targeting a Fellow Student Was Not Protected Speech and Could Be Disciplined by Public School

Tuesday, August 9, 2011

Kowalski v. Berkeley County Schools, No. 10-1098, 2011 BL 194684 (4th Cir. July 27, 2011) The U.S. Court of Appeals for the Fourth Circuit affirmed the dismissal of claims that a public school district violated the rights of a high school student by punishing her for creating a MySpace page ridiculing another student. The court found that the school's action was justified under the U.S. Supreme Court decision Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 513 (1969), because the plaintiff's actions created "substantial disorder" and "collid[ed] with . . . the rights of others."

Plaintiff's MySpace Page

As explained by the court, plaintiff Kara Kowalski was a senior at Musselmann High School in Berkeley County, West Virginia. On December 1, 2005, Kowalski went home after school and, using her home computer, created a discussion group on the social networking website She gave the page the title "S.A.S.H.," and posted on it the statement, "No No Herpes, We don't want no herpes." Kowalski at 3. Kowalski later claimed that "S.A.S.H." was an acronym for "Students Against Sluts Herpes." Id. However, her friend Ray Parsons stated that it stood for "Students Against Shay's Herpes," a reference to Shay N., a fellow student at the Musselmann school. Id. Kowalski invited approximately 100 people to join the S.A.S.H. group. Approximately 24 individuals accepted the invitation. One of them, Ray Parsons, posted on the page a photograph of himself with a friend holding a sign reading "Shay Has Herpes." Id. at 4. He also posted photographs of Shay N.—one with a caption strongly suggesting she had herpes and another with the caption "portrait of a whore." Id. Kowalski posted comments on the page approving of Parsons's actions. Others who joined the S.A.S.H. group posted their own comments applauding the creation of the group and ridiculing the pictures of Shay N. "Haha.. screw her," read one of the comments, and another referred to Shay N. as a "slut." Id. at 13. Shay N. and her parents learned of the existence of the S.A.S.H. MySpace page and filed a harassment complaint with the school. Shay then left the school because she was uncomfortable attending classes with the students who posted comments about her on the page. The school concluded that Kowalski had created a "hate website" in violation of the school policy against "harassment, bullying, and intimidation." Id. at 5. The policy prohibited "any intentional gesture, or any intentional written, verbal or physical act that . . . [a] reasonable person under the circumstances should know will have the effect of . . . [h]arming a student or staff member," if the act "[i]s sufficiently inappropriate, severe, persistent, or pervasive that it creates an intimidating, threatening or abusive educational environment for a student." Id. at 6-7. The school suspended Kowalski from attending classes for five days and restricted her from participating in social activities such as cheerleading for the remainder of the school year. Kowalski sued the school district and several school officials, claiming that the defendants violated her First Amendment right to freedom of speech, deprived her of procedural due process, and that their actions constituted intentional or negligent infliction of emotional distress. The district court granted summary judgment to the defendants, and Kowalski appealed.

Free Speech Claim

On appeal, the Fourth Circuit affirmed. With regard to Kowalski's free speech claim, the court observed that although public school students retain rights under the First Amendment, "their rights are not coextensive with those of adults." Kowalski at 10. In Tinker, the Supreme Court held that a political protest by public school students against the Vietnam War, which consisted of wearing black armbands at school, was protected by the First Amendment. However, the Court declared that student conduct, "in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others" is subject to school discipline and "is . . . not immunized by the constitutional guarantee of freedom of speech." Tinker, 393 U.S. at 513. In subsequent cases, courts have interpreted Tinker to mean that public schools have a "compelling interest" in regulating speech that interferes with or disrupts the work and discipline of the school, including discipline for student harassment and bullying. See DeJohn v. Temple Univ., 537 F.3d 301, 319-20 (3d Cir. 2008). Moreover, courts in several cases, including Boucher v. School Bd. of the School District of Greenfield, 134 F.3d 821, 829 (7th Cir. 1998), and Doninger v. Niehoff, 527 F.3d 41, 48-49 (2d Cir. 2008), have concluded that, in appropriate circumstances, school authorities may regulate student speech that does not originate at the school, so long as the speech "eventually makes its way to the school in a meaningful way." Kowalski at 15. The Fourth Circuit concluded "that Kowalski's speech caused the interference and disruption described in Tinker as being immune from First Amendment protection." Id. at 13. The court characterized the S.A.S.H. MySpace page as "a platform for Kowalski and her friends to direct verbal attacks towards classmate Shay N," which contained "defamatory accusations." Id. "This is not the conduct and speech that our educational system is required to tolerate," the court reasoned, particularly "as schools attempt to educate students about 'habits and manners of civility' or the 'fundamental values necessary to the maintenance of a democratic political system.'" Id. (quoting Bethel School District v. Fraser, 478 U.S. 675, 681 (1986)). The court concluded that it did not matter that Kowalski's conduct occurred after school hours and that she was physically at home when she created the MySpace page, as "she knew that the electronic response would be, as it in fact was, published beyond her home and could reasonably be expected to reach the school or impact the school environment." Id. According to the court, "a court could determine that speech originating outside of the schoolhouse gate but directed at persons in school and received by and acted on by them was in fact in-school speech." Id. at 14. However, the court found it unnecessary to decide whether Kowalski's conduct could be considered to have occurred on campus. "Given the targeted, defamatory nature of Kowalski's speech, aimed at a fellow classmate," the court determined that "it created 'actual or nascent' substantial disorder and disruption in the school." Id. at 15 (quoting Tinker, 393 U.S. at 508)). The disorder and disruption caused by Kowalski's actions included "forc[ing] Shay N. to miss school in order to avoid further abuse. Moreover, had the school not intervened, the potential for continuing and more serious harassment of Shay N. as well as other students was real." Id. Because the school had authority to discipline Kowalski's disruptive speech, the court found that the district court correctly granted summary judgment on her First Amendment claim.

Procedural Due Process Claim

Kowalski's procedural due process claim was founded on the theory that she "was afforded neither adequate notice nor a meaningful opportunity to be heard before she was deprived of her right to an education and her right to free speech." Kowalski at 16. In support of this claim, she argued that the Musselmann student handbook did not place her on notice that she could be disciplined for behavior outside of the school. The court rejected this argument, emphasizing that schools must maintain order and security, which requires flexibility in school disciplinary procedures. The court observed that both the student handbook and the student code of conduct explicitly prohibited bullying, harassment, and intimidation of any student. The rules in question "applied when conduct could adversely affect the school environment." Id. at 18. "Thus," the court explained, "while the prohibited conduct had to be related to the school, this is not to say that volatile conduct was only punishable if it physically originated in a school building or during the school day." Id. "Because the Internet-based bullying and harassment in this case could reasonably be expected to interfere with the rights of a student . . . and thus disrupt the school learning environment," the court reasoned, "Kowalski was indeed on notice that Musselman High School administrators could regulate and punish the conduct at issue here." Id. The court also found that Kowalski was given notice of the complaint, was presented with the evidence against her, and was afforded an opportunity to present her side of the story. Accordingly, the court upheld the district court's grant of summary judgment as to Kowalski's procedural due process claim. Disclaimer This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy. ©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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