Schoolhouse Gates, My Space and First Amendment in the Fourth Circuit

May a school discipline a student for internet "bullying"?  The Fourth Circuit has answered this increasingly common question with a resounding "yes" in its opinion in Kowalski v. Berkeley County Schools.

Kowalski, a senior in a West Virginia public high school, created a MySpace page entitled "S.A.S.H."  Although perhaps not immediately obvious to the uninitiated, this stood for "Students Against Sluts Herpes." The site was dedicated to ridiculing a fellow student.  The school suspended her for five days.

The Fourth Circuit had little difficulty rejecting Kowalski's First Amendment claim, despite the fact that she created the material outside of school.  Applying Tinker v. Des Moines Indep. Community Sch.
Dist., 393 U.S. 503 (1969),  the panel reasoned:

because the School District was authorized by Tinker to discipline Kowalski, regardless of where her speech originated, because the speech was materially and substantially disruptive in that it "interfer[ed] . . . with the schools’ work [and] colli[ded] with the rights of other students to be secure and to be let alone." See Tinker, 393 U.S. at 508, 513. 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.

The panel found that "every aspect of the webpage’s design and implementation was school-related."  It recited facts including Kowalski's design of the website for "students," sending it to students inviting them to join; and encouraging commentary.  Moreover, the panel noted that the "victim understood the attack as school-related, filing her complaint with school authorities."  Additionally, another student "participated from a schoolcomputer during class, to the cheering of Kowalski and her fellow classmates, whom she invited to the affair."

The Fourth Circuit twice noted the recent Third Circuit en banc opinions also involving MySpace pages constructed off campus, but the mentions were exceedingly brief and the analysis confined to paretheticals.   The Fourth Circuit did not distinguish the Third Circuit cases as having targets of school personnel rather than students, which might also be an important distinction for future courts.

Kowalski also raised a due process claim which the Fourth Circuit rejected: "Kowalski’s argument that school administrators did not follow their own policies was not demonstrated in the record and also has no legal merit. Violations of state laws or school procedures "are insufficient by themselves to implicate the interests that trigger a [federal] due process claim.""

At the end of its opinion, the panel had harsh and somewhat paternalistic words for Kowalski (and presumably her parents), as well as sympathy for school administrators attempting to combat bullying:

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.

RR