By Mark Walsh on July 27, 2011
41A federal appeals court on Wednesday upheld the school discipline of a student who allegedly bullied a classmate with an Internet page describing her as a "slut" with herpes.
"Such harassment and bullying is inappropriate and hurtful and ... it must be taken seriously by school administrators in order to preserve an appropriate pedagogical environment," said the unanimous opinion by a three-judge panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va.
The decision is one of several in recent months by federal appeals courts grappling with cases involving students who create Web pages ridiculing school administrators or fellow students. One court backed administrators in a case, while another largely sided with students.
The 4th Circuit case involves Kara Kowalski, who was disciplined for creating a MySpace page targeting another student at Musselman High School in Berkeley County, W.Va.
According to court papers, Kowalski in 2005 created a page called "Students Against Sluts Herpes" and invited other MySpace participants from her school to join it. About two dozen Musselman High students joined the group, including one who accepted his invitation on a school computer. That male posted photos of the female student who was the target of ridicule by the group. One photo was altered to show the female student with red dots on her face, to suggest that she had herpes. The participants posted comments such as "lol [laughing out loud]" or "haha screw her."
The parents of the targeted girl complained to school officials, who disciplined Kowalski. (It isn't clear whether officials disciplined the male student who posted the photos of the ridiculed girl, or any other students who joined the MySpace group.) But school officials concluded that Kowalski had created a "hate" Web site in violation of school policies against harassment, bullying, and intimidation.She was suspended from school for five days and given a "social suspension" of 90 days, meaning she was barred from certain school activities, including the cheerleading squad.
Kowalski sued the Berkeley County school district and various officials, alleging that she was punished for speech that was created outside of school in violation of the First Amendment. A federal district court granted summary judgment to the defendants.
In its July 27 opinion in Kowalski v. Berkeley County Schools, the 4th Circuit court also upheld the right of school administrators to punish such harassing behavior.
"Kowalski used the Internet to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the school district's recognized authority to discipline speech which materially and substantially interferes with the requirements of appropriate discipline in the operation of the school and collides with the rights of others," the court said, citing language from Tinker v. Des Moines Independent Community School District, the landmark U.S. Supreme Court decision on student speech rights in school.
While Kowalski created the MySpace group at home, she knew that the group would include fellow Musselman High students and that the discussion targeting a female student would result in fallout at school, the court said.
"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," the court said.
The court called the "S.A.S.H." Web page "particularly mean-spirited and hateful" and expressed disapproval that Kowalski sued school officials rather than "respond constructively to the school's efforts to bring order and provide a lesson after the incident."
"School administrators are becoming increasingly alarmed by the phenomenon" of harassment and bullying, the court said. "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."
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