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The U.S. Court of Appeals for the Fourth Circuit recently upheld a school’s discipline of a student for engaging in off-campus cyberbullying of another student.  In Kowalski v. Berkeley County Schools, — F.3d — (4th Cir. July 27, 2011), a student (Kara Kowalski) created a MySpace profile called “S.A.S.H.,” which she said was short for “Students Against Sluts Herpes.” Another student, however, claimed it really stood for “Students Against Shay’s Herpes,” referring to a student named Shay N.  Kowalski invited about 100 people to join the page, and about 24 people joined.

Students posted comments and images making fun of Shay N.  One student posted a picture of Shay N. and put “red red dots on Shay N.’s face to simulate herpes and added a sign near her pelvic region, that read, ‘Warning: Enter at your own risk.’ In the second photograph, he captioned Shay N.’s face with a sign that read, ‘portrait of a whore.’”

After a complaint by Shay N. and an investigation, school officials determined that Kowalski created a “hate website” that violated school policy.  Kowalski was suspended for 5 days and received a “socail suspension” for 90 days, unable to participate in various social events at the school.

Kowalski sued, claiming that the discipline violated her free speech rights under the First Amendment to the U.S. Constitution.

Under the “substantial disruption” test, as defined by the U.S. Supreme Court in Tinker v. Des Moines School District, 393 U.S. 503 (1969), the school must demonstrate “facts which might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities.”

The court concluded that the school was justified in imposing discipline under the substantial disruption test.  A lengthy quote from the court’s opinion is quite instructive (citations omitted):

According to a federal government initiative, student-on-student bullying is a “major concern” in schools across the country and can cause victims to become depressed and anxious, to be afraid to go to school, and to have thoughts of suicide. Just as schools have a responsibility to provide a safe environment for students free from messages advocating illegal drug use, schools have a duty to protect their students from harassment and bullying in the school environment.  Far from being a situation where school authorities “suppress speech on political and social issues based on disagreement with the viewpoint expressed,” school administrators must be able to prevent and punish harassment and bullying in order to provide a safe school environment conducive to learning.

We are confident that Kowalski’s speech caused the interference and disruption described in Tinker as being immune from First Amendment protection. The “S.A.S.H.” webpage functioned as a platform for Kowalski and her friends to direct verbal attacks towards classmate Shay N. The webpage contained comments accusing Shay N. of having herpes and being a “slut,” as well as photographs reinforcing those defamatory accusations by depicting a sign across her pelvic area, which stated, “Warning: Enter at your own risk” and labeling her portrait as that of a “whore.” One student’s posting dismissed any concern for Shay N.’s reaction with a comment that said, “screw her.” This is not the conduct and speech 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.”

Kowalski argued that the speech took place at her home and should be outside the school’s power to regulate, but the court concluded:

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. . . .

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.  See Tinker, 393 U.S. at 508, 513; Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243, 257 (3d Cir. 2002) (indicating that administrators may regulate student speech any time they have a “particular and concrete basis” for forecasting future substantial disruption). First, the creation of the “S.A.S.H.” group forced Shay N. to miss school in order to avoid further abuse. Moreover, had the school not intervened, the potential for continuing and more serious harassment of Shay N. as well as other students was real. Experience suggests that unpunished misbehavior can have a snowballing effect, in some cases resulting in “copycat” efforts by other students or in retaliation for the initial harassment.

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. . . .

Thus, even though Kowalski was not physically at the school when she operated her computer to create the webpage and form the “S.A.S.H.” MySpace group and to post comments there, other circuits have applied Tinker to such circumstances.  To be sure, it was foreseeable in this case that Kowalski’s conduct would reach the school via computers, smartphones, and other electronic devices, given that most of the “S.A.S.H.” group’s members and the target of the group’s harassment were Musselman High School students. Indeed, the “S.A.S.H.” webpage did make its way into the school and was accessed first by Musselman student Ray Parsons at 3:40 p.m., from a school computer during an after hours class. Furthermore, as we have noted, it created a reasonably foreseeable substantial disruption there.

Note the contrast between this case and the recent cases decided by the Third Circuit — Layshock v. Hermitage School District and J.S. v. Blue Mountain School District — where students made fake MySpace profiles to ridicule school officials.  Why did the school win here while the schools failed in the Third Circuit cases?

One reason is that here in Kowalski, the speech involved another student and not a school official.  Schools have a special obligation to help protect students from cyberbullying.  Although anti-discrimination and anti-harassment law also protects school employees, courts seem to afford less protection to school employees than to students.

The primary reason is that in Kowalski, the school documented the nexus between the speech and the school and how it created a disruption.  In Layshock and J.S., the schools conceded that there was no actual disruption at the school.  The stronger argument, made in J.S., was that the speech undermined the authority of school officials, but this argument was too abstract and generic for the court to accept.  In contrast, the court in Kowalski is moved by the evidence about how the victim was affected.

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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