©2011 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)

SEE PART 2 OF THIS SERIES on the web or printable pdf

Social networking has become a common method for students to facilitate harassment and bullying of classmates.  School officials often face uncertainty regarding when they may discipline students for such conduct as it often occurs off-campus during non-school hours.  This two part series addresses two common Constitutional challenges that are often argued when schools discipline students for social networking activity.  The first part of the series covers the First Amendment free speech argument, and the second part of the series addresses the Fourteenth Amendment Due Process argument.

To illustrate the two Constitutional challenges, we will examine a recent case from the Fourth Circuit Court of Appeals.  On July 27, 2011, the Fourth Circuit Court of Appeals decided Kowalski v. Berkeley County Schools [i], which illustrates the legal requirements for school discipline based upon off-campus social network bullying.  The facts of Kowalski taken directly from the case are as follows:

On December  1, 2005, Kara Kowalski, who was then a 12th grade student at Musselman High School in the Berkeley County School District, returned home from school and, using her home computer, created a discussion group webpage on MySpace.com   with the heading “S.A.S.H.” Under the webpage’s title, she posted the statement, “No No Herpes, We don’t want no herpes.” Kowalski claimed in her deposition that “S.A.S.H.” was an acronym for “Students Against Sluts Herpes,” but a classmate, Ray Parsons, stated that it was an acronym for “Students Against Shay’s Herpes,” referring to another Musselman High School Student, Shay N., who was the main subject of discussion on the webpage.

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After creating the group, Kowalski invited approximately 100 people on her MySpace “friends” list to join the group. MySpace discussion groups allow registered users to post and respond to text, comments, and photographs in an interactive fashion. Approximately two dozen Musselman High School students responded and ultimately joined the group. Kowalski later explained that she had hoped that the group would “make other students actively aware of STDs,” which were a “hot topic” at her school.

Ray Parsons responded to the MySpace invitation at 3:40 p.m. and was the first to join the group, doing so from a school computer during an afterhours class at Musselman High School. Parsons uploaded a photograph of himself and a friend holding their noses while displaying a sign that read, “Shay Has Herpes,” referring to Shay N. The record of the webpage shows that Kowalski promptly responded, stating, “Ray you are soo funny!=)” It shows that shortly thereafter, she posted another response to the photograph, stating that it was “the best picture [I]’ve seen on myspace so far! ! ! !” Several other students posted similar replies. Parsons also uploaded to the “S.A.S.H.” webpage two additional photographs of Shay N., which he edited. In the first, he had drawn 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.”

The commentary posted on the “S.A.S.H.” webpage mostly focused on Shay N. The first five comments were posted by other Musselman High School students and ridiculed the pictures of Shay N. One student stated that “shay knows about the sign” and then stated, “wait til she sees the page lol.” (The abbreviation “lol” means “laugh out loud” or “laughing out loud.”) The next comment replied, “Haha.. screw her” and repeatedly stated, “This is great.” After expressing her approval of the postings, this student noted the “Shay has herpes sign” and stated, “Kara sent me a few interesting pics. . . Would you be interested in seeing them Ray?” One student posted, “Kara= My Hero,” and another said, “your so awesome kara…i never thought u would mastermind a group that hates [someone] tho, lol.” A few of the posts assumed that Kowalski had posted the photographs of Shay N., but Parsons later clarified that it was he who had posted the photographs.

A few hours after the photographs and comments had been posted to the MySpace.com   page, Shay N.’s father called Parsons on the telephone and expressed his anger over the photographs. Parsons then called Kowalski, who unsuccessfully attempted to delete the “S.A.S.H.” group and to remove the photographs. Unable to do so, she renamed the group “Students Against Angry People.”

The next morning, Shay N.’s parents, together with Shay, went to Musselman High School and filed a harassment complaint with Vice Principal Becky Harden regarding the discussion group, and they provided Harden with a printout of the “S.A.S.H.” webpage. Shay thereafter left the school with her parents, as she did not want to attend classes that day, feeling uncomfortable about sitting in class with students who had posted comments about her on the MySpace webpage.

After receiving Shay N.’s complaint, Principal Ronald Stephens contacted the central school board office to determine whether the issue was one that should be addressed with school discipline. A school board official indicated that discipline was appropriate. Principal Stephens then conducted an investigation into the matter, during which he and Vice Principal Harden interviewed the students who had joined the “S.A.S.H.” group to determine who posted the photographs and comments. As part of the investigation, Principal Stephens and Vice Principal Harden questioned Parsons, who admitted that he had posted the photographs. Vice Principal Harden met with Kowalski, who admitted that she had created the “S.A.S.H.” group but denied that she posted any of the photographs or disparaging remarks.

School administrators concluded that Kowalski had created  a “hate website,” in violation of the school policy against “harassment, bullying, and intimidation.” For punishment, they suspended Kowalski from school for 10 days and issued her a 90-day “social suspension,” which prevented her from attending school events in which she was not a direct participant. Kowalski was also prevented from crowning the next “Queen of Charm” in that year’s Charm Review, having been elected “Queen” herself the previous year. In addition, she was not allowed to participate on the cheerleading squad for the remainder of the year. After Kowalski’s father asked school administrators to reduce or revoke the suspension, Assistant Superintendent Rick Deuell reduced Kowalski’s out-of-school suspension to 5 days, but retained the 90-day social suspension.

Kowalski claims that, as a result of her punishment, she became socially isolated from her peers and received cold treatment from teachers and administrators. She stated that she became depressed and began taking prescription medication for her depression.

Kowalski acknowledged that at the beginning of each school year, including her senior year, she had received a Student Handbook which included the School District’s Harassment, Bullying, and Intimidation Policy, as well as the Student Code of Conduct. [ii]

Kowalski sued the school district and argued that they violated (1) her First Amendment right to free speech, and (2) her Fourteen Amendment due process rights by not providing adequate notice and a hearing.  [Note: This article will not discuss state claims.] The district court found that the school district did not violate Kowalski’s Constitutional rights and did not violate state law; as such, they granted summary judgment for the School District.  Kowalski appealed to the Fourth Circuit Court of Appeals.

Regarding the First Amendment, the issue before the court was whether the School District violated Kowalski’s First Amendment rights when they disciplined her for speech that occurred outside of the school.

As to this issue, Kowalski argued that since this case involves off campus speech (she created the My Space page off-campus) and it was not school related, the First Amendment shielded her from school discipline.  The School District argued that they can, consistent with the First Amendment regulate off-campus behavior as long as the behavior creates a foreseeable risk of reaching the school and causing a substantial disruption to the work and discipline of the school.

The Fourth Circuit then examined precedent from the United States Supreme Court that addresses discipline for student speech.  First they noted that

While students retain significant First Amendment rights in the school context, their rights are not coextensive with those of adults. Because of the special characteristics of the school environment, school administrators have some latitude in regulating student speech to further educational objectives. [iii] [internal quotations and citations omitted]

Additionally, the court noted that

Student speech also may be regulated if it is otherwise “vulgar and lewd.” [iv] Finally, the Supreme Court has held that school administrators are free to regulate and punish student speech that encourages the use of illegal drugs. [v]

The court emphasized, that in order for discipline to not violate the First Amendment, the speech at issue must disrupt class work, create substantial disorder, or infringe on the rights of others. [vi]

The Fourth Circuit also noted that, 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. [vii]

In fact, bullying is such a serious issue at school, court stated

Just as schools have a responsibility to provide a safe environment for students free from messages advocating illegal drug use viii] , schools have a duty to protect their students from harassment and bullying in the school environment. [ix]

Thus, the ‘Fourth Circuit clearly established based on existing precedent that it is permissible to discipline a student for speech that that substantially impacts the educational environment at school.  However, Kowalski sought to emphasize that her speech took place off-campus where she created the My Space page. The court clearly disagreed with Kowalski’s argument by stating

This argument, however, raises the metaphysical question of where her speech occurred when she used the Internet as the medium. 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. [x]

The court then held

We need not resolve, however, whether this was in-school speech and therefore whether Frasercould apply 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.” [xi] [emphasis added]

As such, the Fourth Circuit affirmed the decision of the district court granting summary judgment to the defendant School District regarding the First Amendment claim.


NOTE:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.


[i] No. 10-1098, 2011 U.S. App. LEXIS 15419 (4th Cir. Decided July 27, 2011)

[ii] Id. at 3-8

[iii] Id. at 14 (citing Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969))

[iv] Id. at 15 (See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986))

[v] Id. (Morse v. Frederick, 551 U.S. 393, 127 S. Ct. 2618, 168 L. Ed. 2d 290 (2007))

[vi] Id.

[vii] Id. at 17 (see StopBullying.gov, available at www.stopbullying .gov (follow “Recognize the Warning Signs” hyperlink))

[viii] Id. at 17 (see Morse, 551 U.S. 393, 127 S. Ct. 2618, 168 L. Ed. 2d 290))

[ix] Id. at 18 (Lowery v. Euverard, 497 F.3d 584, 596 (6th Cir. 2007) (“School officials have an affirmative duty to not only ameliorate the harmful effects of disruptions, but to prevent them from happening in the first place”)

[x] Id. at 19-20

[xi] Id. at 21 (See Tinker, 393 U.S. at 508, 513)

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