Federal appellate court rules that West Virginia school district that disciplined student for off-campus online speech did not violate student’s free speech rights
Kowalski v. Berkeley County Sch., No. 1098 (4th Cir. Jul. 27, 2011)
Abstract: A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit (MD, NC, SC, VA, WV) has held that a school district, which disciplined a student for off-campus Internet activity, did not violate the student’s First Amendment free speech rights. The panel also rejected the student’s claims that her procedural due process rights were violated.
The panel concluded that the school district had authority under the substantial disruption standard established in Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969), to discipline the student for speech that originated off-campus because, given the reach of the Internet, it was reasonably foreseeable that the speech would reach the school.
Facts/Issues: Kara Kowalski created a MySpace page, which the federal district court characterized as a chat group, using her home computer. Kowalski named the chat group page S.A.S.H. (Students Against Sluts Herpes) and invited approximately 100 individuals, some of whom attended Mussellman High School (MHS), to join. Group members were free to post comments and other items. It became apparent quickly that the purpose of the group was to target a specific individual, S.N., who also attended MHS. Several members of S.A.S.H. posted false and derogatory comments about S.N. that were vulgar and offensive. One member posted an altered photo of S.N., making it appear as though she had herpes. Although Kowalski did not post any comments or photos aimed directly at S.N., she commented approvingly of many of the derogatory postings.
When S.N. and her parents learned of the chat group, they reported it to MHS officials, asking that the officials close down the site and punish those students involved in creating and posting comments on it. MHS officials conducted an investigation during which they interviewed Kowalski and the other students involved, and provided them with an opportunity to present their side of the story. Upon completion of the investigation, Kowalski was given a 10-day school suspension and a 90-day social suspension, during which she was barred from participating in cheerleading and “Charm Review.” Kowalski was found in violation of Berkeley County Schools’ (BCS) ”Bullying, Harassment and/or Intimidation” policy (BHIP). Although the policy provided an appeals process, Kowalski’s parents instead successfully petitioned the school board to reduce her punishment by half (to a 5-day school suspension and 45-day social suspension).
Kowalski subsequently filed suit, alleging a number of federal constitutional claims. In October 2008, the district court granted in part and denied in part the defendants’ motion to dismiss. It granted the motion with respect to Kowalski’s First Amendment free speech claim on the ground that she lacked standing to bring the claim. Despite this ruling, the district court revisited the merits of Kowalski’s free speech claim when it denied her subsequent motion for reconsideration and again when it considered BCS’ motion for summary judgment on Kowalski’s remaining claims.
The court granted in part and denied in part the defendants’ motion to dismiss the due process claim. It found that the claim contained three allegations: (1) Kowalski’s due process rights were violated because the BHIP failed to provide her with sufficient notice that her off-campus, nonschool related activity was prohibited under the policy; (2) BCS failed to follow its own appeals process or the appeals process was insufficient; and (3) Kowalski was barred from participating in cheerleading and “Charm Review” without notice or hearing.
The court granted the motion to dismiss Kowalski’s claim regarding extracurricular activities on the ground it is well-settled law that students do not enjoy a protected liberty or property interest in participating in extracurricular activities. The court denied the motion in regard to the second allegation that BCS failed to follow its own appeals process or the appeals process was insufficient, concluding that the allegation was facially viable for purposes of a motion to dismiss and would be more properly subjected to a motion for summary judgment following additional discovery. The court denied the motion as to the allegation that BCS failed to provide sufficient notice that the ABHP applied to off-campus student activity unrelated to school. It found the allegation raised a valid question of whether application to off-campus nonschool related activity is a custom or policy.
In December 2009, the district court ruled on the defendants’ motion for summary judgment. In regard to the two due process allegations that survived the motion to dismiss, the court granted summary judgment in favor of the defendants on both.
Ruling/Rationale: Treating Kowalski’s appeal as one on the district court’s ruling on summary judgment, rather than the motion to dismiss, the Fourth Circuit panel affirmed the district court’s decision as to both the free speech and due process claims. It began its analysis of the free speech claim by restating Kowalski’s contention that MHS officials violated her free speech rights under the First Amendment by punishing her for speech that occurred outside the school.
She argued that because this case involved “off-campus, nonschool related speech,” school administrators had no power to discipline her. Kowalski maintained, “no Supreme Court case addressing student speech has held that a school may punish students for speech away from school—indeed every Supreme Court case addressing student speech has taken pains to emphasize that, were the speech in question to occur away from school, it would be protected.”
The panel framed the issue as: ”[W]hether 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.” While acknowledging that the U.S. Supreme Court ”has not dealt specifically with a factual circumstance where student speech targeted classmates for verbal abuse,” it pointed out that the standard enunciated in Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969), recognizes ”the need for regulation of speech that interfered with the school’s work and discipline, describing that interference as speech that ‘disrupts classwork,’ creates substantial disorder,’ or ‘collid[es] with’ or ‘inva[des]‘ ‘the rights of others.’”
The panel found that Tinker’s language supports the conclusion 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. All branches of the federal government have recognized that student-on-student harassment and bullying is a major concern, noted the panel, and that school officials have a duty to protect their students from it.
The panel concluded that Kowalski’s speech was disruptive and caused interference within the meaning of Tinker and, therefore, did not enjoy First Amendment protection. The conduct and speech displayed on the S.A.S.H. web page was not the type that ”our educational system is required to tolerate, 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.’”
Noting that Kowalski admitted to the harassing nature of the speech on the webpage, the panel addressed her argument that the speech was, nonetheless, protected speech because it took place at home and after school hours. This argument, stated the panel, ignored the reality of Internet activity, which allows the speech created to be published beyond Kowalski’s home and ”could reasonably be expected to reach the school or impact the school environment.”
While accepting that there are limits on the scope of school’s interest in protecting students from speech that originates off-campus, the panel concluded that it 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.”
The panel conceded that it is unresolved whether the standard established in Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), for regulating vulgar student speech is applicable to speech that originates off-campus, given the recent Third Circuit en banc ruling in Layshock v. Hermitage Sch. Dist. , No. 07-4465, ___ F.3d ___, 2011 WL 2305970 (3d Cir. 2011). In Layshock, the Third Circuit held that a school could not punish a student for online speech merely because the speech was vulgar and reached the school. However, it concluded that the issue need not be resolved because Tinker provided BCS with all the authorization it need to discipline Kowalski, regardless of where her speech originated.
The panel found additional support for regulating Kowalski’s speech in other court decisions, such as Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008). It stated: ”Other courts have similarly concluded that school administrators’ authority to regulate student speech extends, in the appropriate circumstances, 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.” It pointed out that even though Kowalski was not physically at school when she created the S.A.S.H. website, “other circuits have applied Tinker to such circumstances.”
As had the district court, the panel concluded that the BHIP provided Kowalski with sufficient notice and hearing to satisfy due process. Lastly, it found her argument that school officials had failed to follow their own policies unsupported by the record and without legal merit.
Kowalski v. Berkeley County Sch., No. 1098 (4th Cir. Jul. 27, 2011)
[Editor's Note: Many thanks to COSA member Tracy Eberling of Steptoe & Johnson PLLC, who represented the district in this case and kept Legal Clips updated. In June 2011, Legal Clips carried a summary of a news article from the Republican Herald that reported that Blue Mountain School District had authorized its law firm to prepare an appeal to the U.S. Supreme Court regarding the decision in a student’s Myspace free speech case. The editor's note to that summary contains links to summaries of the Third Circuit's en banc opinions in both J.S. and Layshock and to a summary of the Second Circuit's panel opinion in Doninger.
Depending on whether Kowalski decides to petition the Fourth Circuit for a rehearing and/or a rehearing en banc, the U.S. Supreme Court could be addressing petitions for certiorari in four student off-campus online speech cases in the 2011-2012 term.
Summaries of Kowalski's two district court rulings are available in a combined document here, with links to the court's rulings.]