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 complete facts of Kowalski can be found in Part I of the series.  This article will only cover facts relevant to the Fourteenth Amendment Due Process issue.

The concept of due process generally requires that a person have adequate notice that particular conduct is prohibited, adequate notice that they have committed a violation of some rule, and an opportunity to be heard by the decision maker prior to adverse action.

Here, Kowalski argued that she was denied her Fourteenth Amendment Due Process rights because (1) there was no language in school policy that put her on notice that she could be disciplined for behavior outside of school, and (2) that the school violated its own policy and did not provide her with a meaningful opportunity to be heard.

In order to address Kowalski’s first argument regarding her lack of notice that she could be disciplined for off-campus conduct, it is necessary to examine the school district’s policies at issue.  Taken directly from the case, Berkeley Board of Education Policy is as follows:

The Harassment, Bullying, and Intimidation Policy prohibited “any form of . . . sexual . . . harassment . . . or any bullying or intimidation by any student . . . during any school-related activity or during any education-sponsored event, whether in a building or other property owned, use[d] or operated by the Berkeley Board of Education.” The Policy defined “Bullying, Harassment and/or Intimidation” as “any intentional gesture, or any intentional written, verbal or physical act that”

  1. A reasonable person under the circumstances should know will have the effect of:
    a. Harming a student or staff member;

  2. Is sufficiently inappropriate, severe, persistent, or pervasive that it creates an intimidating, threatening or abusive educational environment for a student.

The policy also provided that violators would be suspended and that disciplinary actions could be appealed.

The Student Code of Conduct provided, “All students enrolled in Berkeley County public schools shall behave in a safe manner that promotes a school environment that is nurturing, orderly, safe, and conducive to learning and personal-social development.” It also committed students to “help create an atmosphere free from bullying, intimidation and harassment” and to “treat others with respect” and “demonstrate compassion and caring.” The Code classified

Bullying/Harassment/Intimidation” as a “Level III Violation” with possible consequences including an out-of-school suspension up to 10 days; signing a behavioral contract; being denied participation in class and/or school activities; and a social suspension of up to one semester. Before punishing a student under the Student Code of Conduct, a principal was required to “immediately undertake or authorize an investigation” of the incident and complaint, including “personal interviews with the complain[an]t, the individual(s) against whom the complaint is filed, and others who may have knowledge of the alleged incident(s) or circumstances giving rise to the complaint.” [ii]

School Legal & Liability TrainingKowalski acknowledged that she received a copy of these policies at the beginning of the school year as she did each year in that school district.  However, she now argues that nothing in the policies put her on notice that she could be disciplined for her off-campus conduct.  The school argued that it was reasonably foreseeable to Kowalski that her web page could reach the school and create a substantial disruption there.

At the outset of its analysis of this issue, the Fourth Circuit noted that while schools are required to provide students with some degree of due process, the Supreme Court has recognized that schools require a certain amount of flexibility in school disciplinary procedures. [iii]  The court also noted that schools do not need to be as detailed as criminal code that imposes criminal sanctions. [iv]

The Fourth Circuit then, examining the relevant school district policies, noted that while the Musselman High School Harassment, Bullying and Intimidation Policy related to school activity and events, it also explicitly states “a student will not bully/intimidate or harass another student.”  Further, the Student Code of Conduct sets standards of conduct in order to maintain a “nurturing and orderly, safe, drug-free, violence and harassment free learning environment…”  The court then stated

Although the prohibitions against harassment and bullying applied in a “school-related” context, both the Harassment, Bullying and Intimidation Policy and the Student Code of Conduct applied when conduct could adversely affect the school environment. Thus, while the prohibited conduct had to be related to the school, this is not to say that volatile conduct was only punishable if it physically originated in a school building or during the school day. Rather, the prohibitions are designed to regulate student behavior that would affect the school’s learning environment. Because the Internet-based bullying and harassment in this case could reasonably be expected to interfere with the rights of a student at Musselman High School and thus disrupt the school learning environment, Kowalski was indeed on notice that Musselman High School administrators could regulate and punish the conduct at issue here. [v] [emphasis added]

As such, the court held that Kowalski had adequate notice that her conduct was prohibited by policy.

The court next addressed whether Kowalski’s Fourteenth Amendment Due Process rights were violated when, according to Kowalski, she was not given an adequate opportunity to be heard.  The Fourth Circuit noted that to be constitutional, Due Process required that,

in connection with a suspension of 10 days or less, …the student be given oral or written notice of the charges against [her] and, if [she] denies them, an explanation of the evidence the authorities have and an opportunity to present [her] side of the story. [vi]

The court noted that in Kowalski’s case, she was called into the principal’s office and told she was being charged with a violation of the harassment and bullying policy.  The school officials discussed the S.A.S.H. group with her, and she acknowledged her role in the web page.  The school officials then told her she was being suspended for 10 days.  Kowalski’s father asked the assistant school superintendant to reduce or revoke the suspension, and he reduced it to 5 days out-of-school suspension and a 90 day social activity suspension.

As to whether Kowalski was given an adequate hearing, the court stated

Because Kowalski admitted her conduct, the administrators were not required to provide a more extensive opportunity to allow her to justify her conduct. [vii] [emphasis added]

Further, as to Kowalski’s argument that the school officials did not properly follow school district policy regarding her discipline, the court stated

Violations of state laws or school procedures “are insufficient by themselves to implicate the interests that trigger a [federal] due process claim.” [viii] [emphasis added]

As such, Kowalski’s Fourteenth Amendment Due Process claim failed because (1) the court held she received adequate notice that school policy could apply to her off-campus conduct, and (2) she was given an adequate hearing; further, even if the school district did not follow its own policy, this failed to create a federal due process claim under the Fourteenth Amendment.


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 8-9

[iii] Id. at 26 (citing New Jersey v. T.L.O., 469 U.S. 325, 340 (1985))

[iv] Id. (citing Bethal School District v. Fraser, 478 U.S. 675 (1986))

[v] Id. at 27-28

[vi] Id. at 28 (quoting Goss v. Lopez, 419 U.S. 565, 585 (1975))

[vii] Id.

[viii] Id. (Wofford v. Evans, 390 F.3d 318, 325 (4th Cir. 2004);  Weller v. Dept. of Soc. Servs., 901 F.2d 387, 392 (4th Cir. 1990))

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