Kowalski v. Berkeley County

While the Supreme Court has not yet ruled on a case regarding cyberbullying and schools, federal district and circuit courts continue to hear such cases.  This past July, the United States Court of Appeals for the Fourth Circuit issued an important decision in a case out of West Virginia.   The case, Kowalski v. Berkeley County, No. 10-1098 (4^th Cir. July 27, 2011), can be accessed through the following website:  http://pacer.ca4.uscourts.gov/opinion.pdf/101098.P.pdf.  The case was argued before a three judge panel, and the ruling affects the entire 4^th circuit including Virginia, West Virginia, North Carolina, South Carolina, Maryland, and Delaware. 

Kara Kowalski was a senior at Musselman High School in Berkeley County, West Virginia.  She created a discussion group webpage called “S.A.S.H” on MySpace.com using her computer at home and stated that it stood for “Students Against Sluts Herpes,” but another student, Ray Parsons, stated that the webpage was targeted toward a young woman referred to as Shay N.  He stated that the acronym actually stood for “Student’s Against Shay’s Herpes.” 

Kowalski invited her MySpace friends to join the discussion group, and about two dozen did so.  Parson actually responded to the post from a computer at school while he was in an after school program.  The site was populated with pictures and unkind comments and references to Shay N.  All of the initial comments were from Musselman High School students. 

Shay N.’s father learned of the site and called Parsons to express his displeasure.  Kowalski, when told of the call, tried to remove the photographs.  She was unable to do so, but she was successful in renaming the discussion group as “Students Against Angry People.”

The following morning Shay N. and her parents filed a harassment complaint with the vice-principal and provided a printout of the webpage.  After the meeting, Shay N. left school because she was uncomfortable being around students who had contributed to the site. 

The vice-principal notified the principal who immediately contacted the central office.  The central office response was to consider the matter a school discipline issue.  Following school board policy, the principal and vice-principal launched an investigation.  They interviewed Kowalski, Parsons, and other students who had joined the group.  After the investigation, the administration considered the MySpace site to be a “hate website” which violated the school district’s “harassment, bullying, and intimidation” policy and also violated the student code of conduct.  Kowalski was suspended for 10 days from school and given 90 days social suspension meaning she could not participate in cheerleading or other extra curricular activities for the equivalent of a semester. 

Somewhat ironically, Kowalski was not allowed to crown the next “Queen of Charm” which she expected to be able to do since she was the reigning “Queen.”  Following district policy, the father appealed the suspension to the assistant superintendent, and the suspension was reduced to five days.  However, the 90-day social suspension was maintained. 

Kowalski felt her punishment was unjustified because she was “socially isolated from her peers and received cold treatment from teachers and administrators.”  She stated that she began taking prescription medication for depression.  Kowalski took the issue to federal district court and sued the superintendent, principal, vice-principal, assistant superintendent, and cheerleading coach.  Her suit noted that school officials violated her constitutional rights under 42 U. S. C.  § 1983 which reads that state employees under color of state law who discriminate against someone can be held personally liable for violating those rights.  

Kowalski also sued stating that her first, fifth, eighth, and fourteen amendment rights were violated.  Her first amendment rights were violated because the webpage was created on her own computer outside of school hours.  Her fifth amendment rights of due process were not provided because the school did not follow its own policy in investigating.  Her eighth amendment rights were violated because the punishment was cruel and unusual, and her equal protection rights of the fourteenth amendment were violated.  She also sued that her state constitutional rights were violated. 

The federal district court dismissed most of the claims and granted summary judgment to the school district.   Kowalski then appealed to the 4^th circuit.  The appeals court heard the case de novo.  In essence, the appeals reviewed the entire case to make sure that the federal district court judge came to a proper conclusion.   

The 4^th circuit noted the essence of the case when it stated the following: “The question thus presented is whether Kowalski’s activity fell within the outer boundaries of the high school’s legitimate interest in maintaining order in the school and protecting the well-being and educational rights of its students.”

The 4^th circuit ruled in favor of school officials stating that the disciplinary action was justified and did not violate any of Kowalski’s constitutional rights.  In ruling against Kowalski, the court made several important points of which principals should be aware. 

The 4^th circuit quoted the Supreme Court in Tinker v. Des Moines Indep. Community School Dist. stating that while students do have freedom of speech, those freedoms are the not the same as adults because of the “special characteristics of the school environment.” 

The 4^th circuit recognized that the Supreme Court has not ruled on a case where “student speech targeted classmates for verbal abuse.”  Even in most cases that have made it to a court of appeals, the cases have involved websites that were created after school hours using non-school computers and which were directed toward administrators or teachers.  As a result, the courts have generally used the Tinker standard that the speech must create a substantial disruption in the school. 

In this case, the 4^th circuit added an additional reference to Tinker which has not been evident in most other cases when the court noted that speech that “disrupts classwork,” creates “substantial disorder,” or “collid[es] with “or inva[des] the rights of others” is not protected speech.  Since the Kowalski case involves student-to-student harassment, the 4^th circuit used the Tinker reference noting that speech that violates the rights of others is an important point in this debate, and that such speech is not protected when directed at another student.  It appears the 4^th circuit is just as concerned with protecting the rights of the victim as much as it is concerned with protecting the constitutional rights of the speaker.  The court also quoted Tinker that students have the right “to be secure and to be let alone.”  This aspect of the Tinker decision is rarely referenced in most cyberbullying cases. 

The 4^th circuit went on to state:

[C]onduct by [a] student, 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, of course, not immunized by the constitutional guarantee of freedom of speech. 

While it may be illogical to believe that the Supreme Court in 1969 could have predicted the Internet, it is clear from the above quote that the Supreme Court recognized that speech made outside of school is not automatically protected by the Constitution. 

The 4^th circuit also appears to have put greater responsibility on schools to prevent bullying and cyberbullying.  Recognizing that student-to-student bullying is a major concern, the 4^th circuit used a quote from the Supreme Court decision in Morse v. Frederick stating that while schools have a duty to lessen the effects of disruption, they also have a duty “to prevent them from happening in the first place.”

The Kowalski case also raised, but did not answer, a question which courts will have to address at some point when the judges pondered the following question: where does speech over the internet occur?  The 4^th circuit speculated that 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.”

The 4^th circuit did not answer that question because it reasoned that did not have to in making this decision.   The court clearly believed that Kowalski had to know that her speech directed toward a fellow classmate and which encouraged other classmates to participate would make its way into the school environment.  Furthermore, school administrators could reasonably forsee that the website would reach the school and create a substantial disruption. 

The 4^th circuit also dismissed other claims relating to the 5^th, 8^th, and 14^th amendments.  School administrators did follow their due process policy by telling Kowalski what policy she violated and giving her a chance to provide her side of the story. 

There are also some important lessons that administrators can learn from this case.  These lessons are noted below:

• Follow your policy related to due process when investigating disciplinary matters (remember that due process in Virginia by state law requires not only telling the student what policy they violated and giving them the opportunity to give their side of the story, it also requires notification of the appeal process).
• Take accusations of bullying and cyberbullying seriously.  Investigate, especially in light of the 4^th circuit’s reference to preventing bullying.
• Ensure that your school board policy notes that failure to comply with the bullying and cyberbullying policy could result in suspension from school, suspension from school activities, and/or social suspension if the speech creates a substantial disruption in school or violates the rights of another student to be safe from harassment. 

While Kowalski is the law within the 4^th circuit, discipline of students relating to the use of the Internet is still murky, at best.  When confronted with such issues, it is best to contact the superintendent for advice and to seek competent legal counsel before making a decision.