{"id":236,"date":"2011-10-12T08:50:38","date_gmt":"2011-10-12T12:50:38","guid":{"rendered":"http:\/\/news.vassp.org\/?p=236"},"modified":"2011-10-12T08:50:38","modified_gmt":"2011-10-12T12:50:38","slug":"cyberbullying-and-public-schools","status":"publish","type":"post","link":"https:\/\/news.vassp.org\/?p=236","title":{"rendered":"Cyberbullying and Public Schools"},"content":{"rendered":"

Kowalski v. Berkeley County<\/strong><\/p>\n

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.\u00a0 This past July, the United States Court of Appeals for the Fourth Circuit issued an important decision in a case out of West Virginia.\u00a0\u00a0 The case, Kowalski v. Berkeley County, No. 10-1098 (4th<\/sup> Cir. July 27, 2011), can be accessed through the following website:\u00a0 http:\/\/pacer.ca4.uscourts.gov\/opinion.pdf\/101098.P.pdf<\/a>.\u00a0 The case was argued before a three judge panel, and the ruling affects the entire 4th<\/sup> circuit including Virginia, West Virginia, North Carolina, South Carolina, Maryland, and Delaware.\u00a0<\/p>\n

Kara Kowalski was a senior at Musselman High School in Berkeley County, West Virginia.\u00a0 She created a discussion group webpage called \u201cS.A.S.H\u201d on MySpace.com using her computer at home and stated that it stood for \u201cStudents Against Sluts Herpes,\u201d but another student, Ray Parsons, stated that the webpage was targeted toward a young woman referred to as Shay N.\u00a0 He stated that the acronym actually stood for \u201cStudent\u2019s Against Shay\u2019s Herpes.\u201d\u00a0<\/p>\n

Kowalski invited her MySpace friends to join the discussion group, and about two dozen did so.\u00a0 Parson actually responded to the post from a computer at school while he was in an after school program.\u00a0 The site was populated with pictures and unkind comments and references to Shay N.\u00a0 All of the initial comments were from Musselman High School students.\u00a0<\/p>\n

Shay N.\u2019s father learned of the site and called Parsons to express his displeasure.\u00a0 Kowalski, when told of the call, tried to remove the photographs.\u00a0 She was unable to do so, but she was successful in renaming the discussion group as \u201cStudents Against Angry People.\u201d<\/p>\n

The following morning Shay N. and her parents filed a harassment complaint with the vice-principal and provided a printout of the webpage.\u00a0 After the meeting, Shay N. left school because she was uncomfortable being around students who had contributed to the site.\u00a0<\/p>\n

The vice-principal notified the principal who immediately contacted the central office.\u00a0 The central office response was to consider the matter a school discipline issue.\u00a0 Following school board policy, the principal and vice-principal launched an investigation.\u00a0 They interviewed Kowalski, Parsons, and other students who had joined the group.\u00a0 After the investigation, the administration considered the MySpace site to be a \u201chate website\u201d which violated the school district\u2019s \u201charassment, bullying, and intimidation\u201d policy and also violated the student code of conduct.\u00a0 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.\u00a0<\/p>\n

Somewhat ironically, Kowalski was not allowed to crown the next \u201cQueen of Charm\u201d which she expected to be able to do since she was the reigning \u201cQueen.\u201d\u00a0 Following district policy, the father appealed the suspension to the assistant superintendent, and the suspension was reduced to five days.\u00a0 However, the 90-day social suspension was maintained.\u00a0<\/p>\n

Kowalski felt her punishment was unjustified because she was \u201csocially isolated from her peers and received cold treatment from teachers and administrators.\u201d\u00a0 She stated that she began taking prescription medication for depression.\u00a0 Kowalski took the issue to federal district court and sued the superintendent, principal, vice-principal, assistant superintendent, and cheerleading coach.\u00a0 Her suit noted that school officials violated her constitutional rights under 42 U. S. C.\u00a0 \u00a7 1983 which reads that state employees under color of state law who discriminate against someone can be held personally liable for violating those rights. \u00a0<\/p>\n

Kowalski also sued stating that her first, fifth, eighth, and fourteen amendment rights were violated.\u00a0 Her first amendment rights were violated because the webpage was created on her own computer outside of school hours.\u00a0 Her fifth amendment rights of due process were not provided because the school did not follow its own policy in investigating.\u00a0 Her eighth amendment rights were violated because the punishment was cruel and unusual, and her equal protection rights of the fourteenth amendment were violated.\u00a0 She also sued that her state constitutional rights were violated.\u00a0<\/p>\n

The federal district court dismissed most of the claims and granted summary judgment to the school district.\u00a0\u00a0 Kowalski then appealed to the 4th<\/sup> circuit. \u00a0The appeals court heard the case de novo<\/em>.\u00a0 In essence, the appeals reviewed the entire case to make sure that the federal district court judge came to a proper conclusion.\u00a0 \u00a0<\/p>\n

The 4th<\/sup> circuit noted the essence of the case when it stated the following: \u201cThe question thus presented is whether Kowalski\u2019s activity fell within the outer boundaries of the high school\u2019s legitimate interest in maintaining order in the school and protecting the well-being and educational rights of its students.\u201d<\/p>\n

The 4th<\/sup> circuit ruled in favor of school officials stating that the disciplinary action was justified and did not violate any of Kowalski\u2019s constitutional rights.\u00a0 In ruling against Kowalski, the court made several important points of which principals should be aware.\u00a0<\/p>\n

The 4th<\/sup> circuit quoted the Supreme Court in Tinker v. Des Moines Indep. Community School Dist. <\/em>stating that while students do have freedom of speech, those freedoms are the not the same as adults because of the \u201cspecial characteristics of the school environment.\u201d\u00a0<\/p>\n

The 4th<\/sup> circuit recognized that the Supreme Court has not ruled on a case where \u201cstudent speech targeted classmates for verbal abuse.\u201d\u00a0 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.\u00a0 As a result, the courts have generally used the Tinker standard that the speech must create a substantial disruption in the school.\u00a0<\/p>\n

In this case, the 4th<\/sup> circuit added an additional reference to Tinker<\/em> which has not been evident in most other cases when the court noted that speech that \u201cdisrupts classwork,\u201d creates \u201csubstantial disorder,\u201d or \u201ccollid[es] with \u201cor inva[des] the rights of others\u201d is not protected speech.\u00a0 Since the Kowalski case involves student-to-student harassment, the 4th<\/sup> circuit used the Tinker<\/em> 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.\u00a0 It appears the 4th<\/sup> 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.\u00a0 The court also quoted Tinker<\/em> that students have the right \u201cto be secure and to be let alone.\u201d\u00a0 This aspect of the Tinker<\/em> decision is rarely referenced in most cyberbullying cases.\u00a0<\/p>\n

The 4th<\/sup> circuit went on to state:<\/p>\n

[C]onduct by [a] student, in class or out of it, which for any reason \u2013 whether it stems from time, place, or type of behavior \u2013 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.\u00a0<\/p>\n

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.\u00a0<\/p>\n

The 4th<\/sup> circuit also appears to have put greater responsibility on schools to prevent bullying and cyberbullying.\u00a0 Recognizing that student-to-student bullying is a major concern, the 4th<\/sup> circuit used a quote from the Supreme Court decision in Morse v. Frederick<\/em> stating that while schools have a duty to lessen the effects of disruption, they also have a duty \u201cto prevent them from happening in the first place.\u201d<\/p>\n

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?\u00a0 The 4th<\/sup> circuit speculated that a court \u201ccould 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.\u201d<\/p>\n

The 4th<\/sup> circuit did not answer that question because it reasoned that did not have to in making this decision.\u00a0 \u00a0The 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.\u00a0 Furthermore, school administrators could reasonably forsee that the website would reach the school and create a substantial disruption.\u00a0<\/p>\n

The 4th<\/sup> circuit also dismissed other claims relating to the 5th<\/sup>, 8th<\/sup>, and 14th<\/sup> amendments.\u00a0 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.\u00a0<\/p>\n

There are also some important lessons that administrators can learn from this case.\u00a0 These lessons are noted below:<\/p>\n