• School Could Punish Student For Creating Webpage Designed To Ridicule And Demean A Fellow Student
  • January 11, 2012 | Author: Christian M. Keiner
  • Law Firm: Kronick Moskovitz Tiedemann & Girard A Law Corporation - Sacramento Office
  • In Kowalski v. Berkeley (--- F.3d ----, C.A.4 (W.Va.), July 27, 2011), the United States Court of Appeals for the Fourth Circuit considered a student’s claim that a school violated her rights to free speech and due process when it disciplined her for creating an off-campus webpage that was dedicated to ridiculing a fellow student. The Court of Appeals held the school did not violate the student’s right in regulating her out-of-school speech because her speech interfered with the work and discipline of the school.

    When Kara Kowalski (“Kowalski”) was a senior at Musselman High School (“MHS”) in Berkeley County, West Virginia, she created a webpage on MySpace.com using her home computer. She placed a heading of “S.A.S.H.” on the page; Kowalski claims that “S.A.S.H” stood for “Students Against Slut Herpes.” However, Kowalski’s classmate, Ray Parsons (“Parsons”), stated “S.A.S.H.” was an acronym for “Students Against Shay’s Herpes” in reference to Shay N., a fellow student at MHS.

    After Kowalski created the group, she invited approximately 100 of her MySpace friends, including fellow MHS students, to join the group. Parsons used a school computer to accept the invitation and uploaded several pictures Shay and her parents went to School the next day and filed a harassment complaint. Parsons admitted to posting the photographs and Kowalski admitted she created the group but denied she posted any photos or disparaging remarks.

    School administrators concluded Kowalski had violated its policy against bullying, harassment, and intimidation by creating a “hate website” and suspended Kowalski for ten days and issued a ninety-day social suspension. Her out-of-school suspension was subsequently reduced to five days but the social suspension remained in effect. Kowalski brought a lawsuit against MHS and several of its officials (collectively, “School”) alleging that they violated, among other things, her rights to free speech and due process. The trial court granted summary judgment in favor of School.

    Kowalski claimed School officials violated her right to free speech when she was punished for speech that occurred outside of school. The Court of Appeals held that the School did not violate Kowalski’s constitutional rights when it disciplined her.

    Although students have First Amendment rights, in the school context, their rights are not coextensive with those of adults. School officials “have some latitude in regulating student speech to further educational objectives.” Schools may regulate student speech under certain circumstances, including where the speech is vulgar and lewd. Public schools also have a ‘compelling interest’ in regulating speech that disrupts the work and discipline of the school, including harassment and bullying.

    The Court of Appeal found that Kowalski’s “speech caused the interference and disruption described [by the Supreme Court] as being immune from First Amendment protection.” The webpage created by Kowalski was a platform to launch verbal attacks at fellow student Shay N. The court stated that Kowalski’s actions are not “conduct and speech that our educational system is required to tolerate.”

    The court rejected Kowalski’s argument that because her conduct occurred in her home and after school hours, it should receive the full protection of the First Amendment. Although she “pushed her computer’s keys in her home,” Kowalski “knew that the electronic responses would be . . . published beyond her home and could reasonably be expected to reach the school or impact the school environment.” The court stated, “Given the targeted, defamatory nature of Kowalski’s speech, aimed at a fellow classmate, it created ‘actual or nascent’ substantial disorder and disruption in the school.”

    A school’s “authority to regulate student speech extends, in the appropriate circumstances, to speech that does not originate in the school itself, so long as the speech eventually makes it way to the school in a meaningful way.” It was foreseeable that Kowalski’s conduct would reach MHS because most of the “S.A.S.H.” group members and Shay N. were fellow students. The court concluded that School officials were authorized to discipline Kowalski because her conduct interfered with the work and the discipline of the school.

    The court also concluded that School officials did not violate Kowalski’s right to due process. Kowalski received a student handbook which put her on notice that both the Harassment and Bullying and Intimidation Policy and the Student Code of Conduct prohibit bullying and harassment and that she could be punished for such behavior. The court found that although the prohibition against bullying and harassment applies in a “school-related context,” it also applies “when conduct could adversely affect the school environment.” The court found, “Because the Internet-based bullying and harassment in this case could reasonably be expected to interfere with the rights of a student at [the] School and thus disrupt the school learning environment, Kowalski was indeed on notice that . . . School administrators could regulate and punish the conduct at issue here.”

    What This Means To You
    Although this decision is from the Fourth Circuit and thus not binding in California, it discusses the developing law related to student off-campus free speech rights.

    The student’s behavior here, in creating the website, was determined to constitute harassment and bullying of a fellow student. Bullying is a major concern for California school districts and school administrators need to be able to discipline students where their speech, whether on campus or off-campus in origin, interferes with or disrupts school activities.