The Fourth Circuit affirmed the denial of relief to a student alleging that punishment imposed by school officials for her internet speech violated various provisions of the Constitution. Judge Niemeyer wrote the opinion in Kowalski v. Berkeley County Schools, which was joined by Judges Duncan and Agee.
Summary and snippets after the jump.
When Kara Kowalski was a high-school senior, she created at home one evening a MySpace group titled “S.A.S.H.” (which stood either for “Students Against Sluts’ Herpes” or “Students Against Shay’s Herpes”). She invited approximately 100 MySpace friends to join the group, and approximately two dozen fellow students ultimately joined it. Pictures uploaded by another student and commentary posted by Kara and other students focused predominantly on a classmate, Shay. In one picture, two students held their noses while displaying a sign stating “Shay Has Herpes.” There were also two doctored pictures of Shay–one with red dots on her face and another with a sign near her pelvic region stating “Warning: Enter at your own risk.”
These activities led Shay and her parents to file a harassment complaint with the school, which conducted an investigation and punished Kowalski. The school imposed a 10-day out-of-school suspension (later reduced to 5 days), and a 90-day “social suspension” limiting Kowalski’s participation in school activities. The school officials also prevented Kowalski “from crowning the ‘Queen of Charm’ in that year’s Charm Review, having been elected ‘Queen’ herself the previous year.”
Kowalski sued school officials, alleging free speech, equal protection, due process, and Eighth Amendment violations. The district court denied relief and the Fourth Circuit affirmed the denial of relief.
The principal issue addressed is the scope of school administrator authority over speech initiated outside of school boundaries–an issue that several Courts of Appeals have addressed in recent years. (See, for example, this newspaper article discussing some recent Second and Third Circuit cases, and this Time Magazine story.)
The Fourth Circuit determined that “the targeted, defamatory nature of Kowalski’s speech, aimed at a fellow classmate, . . . created ‘actual or nascent’ substantial disorder and disruption in the school.” This sufficed to authorize the intervention of school officials without triggering a constitutional violation. The Fourth Circuit followed other circuits in determining that “school administrators’ authority to regulate student speech extends, in the appropriate circumstance, to speech that does not originate at the school itself, so long as the speech eventually makes its way to the school in a meaningful way.”
An interesting snippet about the location of internet speech:
While Kowalski does not seriously dispute the harassing character of the speech on the “S.A.S.H.” webpage, she argues mainly that her conduct took place at home after school and that the forum she created was therefore subject to the full protection of the First Amendment. This argument, however, raises the metaphysical question of where her speech occurred when she used the Internet as the medium. Kowalski indeed pushed her computer’s keys in her home, but 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. She also knew that the dialogue would and did take place among Musselman High School students whom she invited to join the “S.A.S.H.” group and that the fallout from her conduct and the speech within the group would be felt in the school itself. Indeed, the group’s name was “Students Against Sluts Herpes” and a vast majority of its members were Musselman students. As one commentator on the webpage observed, “wait til [Shay N.] sees the page lol.” Moreover, as Kowalski could anticipate, Shay N. and her parents took the attack as having been made in the school context, as they went to the high school to lodge their complaint.
There is surely a limit to the scope of a high school’s interest in the order, safety, and well-being of its students when the speech at issue originates outside the schoolhouse gate. But we need not fully define that limit here, as we are satisfied that the nexus of Kowalski’s speech to Musselman High School’s pedagogical interests was sufficiently strong to justify the action taken by school officials in carrying out their role as the trustees of the student body’s well-being.
Some snippets from the conclusion of the opinion:
Kowalski asserts that the protections of free speech and due process somehow insulate her activities from school discipline because her activity was not sufficiently school-related to be subject to school discipline. Yet, every aspect of the webpage’s design and implementation was school-related. Kowalski designed the website for “students,” perhaps even against Shay N.; she sent it to students inviting them to join; and those who joined were mostly students, with Kowalski encouraging the commentary. The victim understood the attack as school-related, filing her complaint with school authorities. Ray Parsons, who provided the vulgar and lewd—indeed, defamatory—photographs understood that the object of the attack was Shay N., and he participated from a school computer during class, to the cheering of Kowalski and her fellow classmates, whom she invited to the affair.
Rather than respond constructively to the school’s efforts to bring order and provide a lesson following the incident, Kowalski has rejected those efforts and sued school authorities for damages and other relief. Regretfully, she yet fails to see that such harassment and bullying is inappropriate and hurtful and that it must be taken seriously by school administrators in order to preserve an appropriate pedagogical environment. Indeed, school administrators are becoming increasingly alarmed by the phenomenon, and the events in this case are but one example of such bullying and school administrators’ efforts to contain it. Suffice it to hold here that, where such speech has a sufficient nexus with the school, the Constitution is not written to hinder school administrators’ good faith efforts to address the problem.