KOWALSKI v. BERKELEY COUNTY SCHOOLS No. 10-1098.
652 F.3d 565 (2011)
Kara KOWALSKI, Plaintiff-Appellant, v. BERKELEY COUNTY SCHOOLS, a public school district; Manny P. Arvon, II, Superintendent, in his official capacity; Ronald Stephens, Principal, in his official capacity and individually; Becky J. Harden, Vice Principal, in her official capacity and individually; Buffy Ashcraft, cheerleading coach, in her official capacity and individually; Rick Deuell, Assistant Superintendent, in his official capacity, Defendants-Appellees.
United States Court of Appeals, Fourth Circuit.
Decided: July 27, 2011.
ARGUED: Nancy A. Dalby, Charles Town, West Virginia, for Appellant. Tracey Brown Eberling, Steptoe & Johnson, LLP, Martinsburg, West Virginia, for Appellees. ON BRIEF: Jason P. Foster, Steptoe & Johnson, LLP, Martinsburg, West Virginia, for Appellees.
Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge DUNCAN and Judge AGEE joined.
NIEMEYER, Circuit Judge:
When Kara Kowalski was a senior at Musselman High School in Berkeley County, West Virginia, school administrators suspended her from school for five days for creating and posting to a MySpace.com webpage called "S.A.S.H.," which Kowalski claims stood for "Students Against Sluts Herpes" and which was largely dedicated to ridiculing a fellow student. Kowalski commenced this action, under 42 U.S.C. § 1983, against the Berkeley County School District and five of its officers, contending that in disciplining her, the defendants violated her free speech and due process rights under the First and Fourteenth Amendments. She alleges, among other things, that the School District was not justified in regulating her speech because it did not occur during a "schoolrelated activity," but rather was "private out-of-school speech."
The district court entered summary judgment in favor of the defendants, concluding that they were authorized to punish Kowalski because her webpage was "created for the purpose of inviting others to indulge in disruptive and hateful conduct," which caused an "in-school disruption."
Reviewing the summary judgment record de novo, we conclude that in the circumstances of this case, the School District's imposition of sanctions was permissible. 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 interfere[es] with the requirements of appropriate discipline in the operation of the school and collid[es] with the rights of others." Tinker v. Des Moines Indep. Community Sch. Dist.,
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.
After creating the group, Kowalski invited approximately 100 people on her My-Space "friends" list to join the group. My-Space 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.
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
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. 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"
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."
The school administrators' meetings with Kowalski and the other students involved in the "S.A.S.H." webpage were
Kowalski commenced this action in November 2007 against the Berkeley County School District, Superintendent Manny Arvon (in his official capacity), Principal Ronald Stephens (in his official and individual capacities), Vice Principal Becky Harden (in her official and individual capacities), cheerleading coach Buffy Ashcraft (in her official and individual capacities), and Assistant Superintendent Rick Deuell (in his official capacity), alleging free speech violations under the First Amendment, due process violations under the Fifth Amendment (which Kowalski has acknowledged should have been under the Fourteenth Amendment), cruel and unusual punishment under the Eighth Amendment, and equal protection violations under the Fourteenth Amendment. The complaint also alleged violations of corresponding provisions of the West Virginia Constitution and a state law claim for intentional or negligent infliction of emotional distress. In addition to damages, Kowalski sought a declaratory judgment that the School District's harassment policy was unconstitutionally vague or overbroad and an injunction requiring the school to expunge any record of her discipline.
On the defendants' motion to dismiss the complaint, the district court dismissed Kowalski's free speech claim for lack of standing, concluding that she failed to allege that she had been disciplined under the School District's policy for engaging in speech protected by the First Amendment. In a later ruling denying Kowalski's motion for reconsideration, however, the district court recognized that Kowalski had engaged in speech. Nonetheless, it held that Kowalski lacked standing because her injury would "not be redressed by a favorable decision." Despite this ruling, the district court revisited the merits of Kowalski's free speech claim when it denied her subsequent motion for reconsideration and again when it considered the defendants' motion for summary judgment on Kowalski's remaining claims. In ruling on the summary judgment motion, the court concluded that "the defendants could legitimately take action for [Kowalski's] vulgar and offensive speech and her encouragement of other students to follow suit." The district court also dismissed Kowalski's cruel and unusual punishment claim.
In granting summary judgment to the defendants, in addition to ruling against Kowalski on her free speech claim, the district court denied Kowalski's due process claim, concluding (1) that Kowalski was on notice that she could be punished for her off-campus behavior and (2) that she was provided with an opportunity to be heard prior to her suspension. The court also denied Kowalski's state law claims and her equal protection claim, with regard to which she had failed to produce any evidence. Finally, the court denied Kowalski's motion for reconsideration.
Kowalski appealed the district court's rulings on her free speech and due process claims under the U.S. Constitution and her state law claim for intentional or negligent infliction of emotional distress. At oral argument, she stipulated that we should treat the district court's judgment as granting summary judgment (rather than a motion to dismiss) on the issues appealed. We review the district court's rulings de novo. See Stone v. Liberty Mut. Ins. Co.,
Kowalski contends first that the school administrators violated her free speech rights under the First Amendment by punishing her for speech that occurred outside the school. She argues that because this case involved "off-campus, non-school related speech," school administrators
The Berkeley County School District and its administrators contend that school officials "may regulate off-campus behavior insofar as the off-campus behavior creates a foreseeable risk of reaching school property and causing a substantial disruption to the work and discipline of the school," citing Doninger v. Niehoff,
The question thus presented is whether Kowalski's activity fell within the outer boundaries of the high school's legitimate interest in maintaining order in the school and protecting the well-being and educational rights of its students.
The First Amendment prohibits Congress and, through the Fourteenth Amendment, the States from "abridging the freedom of speech." U.S. Const. amend. I; Gitlow v. New York,
While students retain significant First Amendment rights in the school context, their rights are not coextensive with those of adults. See Tinker v. Des Moines Indep. Community Sch. Dist.,
Although the Supreme Court has not dealt specifically with a factual circumstance where student speech targeted classmates for verbal abuse, in Tinker it recognized the need for regulation of speech that interfered with the school's work and discipline, describing that interference as speech that "disrupts classwork,"
In Tinker, the Court pointed out at length how wearing black armbands in protest against the Vietnam War was passive and did not create "disorder or disturbance" and therefore did not interfere with the school's work or collide with other students' rights "to be secure and to be let alone." 393 U.S. at 508, 89 S.Ct. 733. Of course, a mere desire to avoid "discomfort and unpleasantness" was an insufficient basis to regulate the speech; there had to be disruption in the sense that the speech "would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." Id. at 509, 89 S.Ct. 733 (quoting Burnside, 363 F.2d at 749). The Court amplified the nature of the disruption it had in mind when it stated:
Id. at 513, 89 S.Ct. 733.
The Tinker Court referred to this amplified statement of its test later in its opinion in shorthand when it concluded that the regulation of armbands "would violate the constitutional rights of students, at least if it could not be justified by a showing that the students' activities would materially and substantially disrupt the work and discipline of the school." Id. (emphasis added). Because, in Tinker, the students' wearing of the armbands "neither interrupted school activities nor sought to intrude in the school affairs or the lives of others," there was "no interference with work and no disorder" to justify regulation of the speech. Id. at 514, 89 S.Ct. 733.
Thus, the language of Tinker supports the conclusion that public schools have a "compelling interest" in regulating speech that interferes with or disrupts the work and discipline of the school, including discipline for student harassment and bullying. See DeJohn v. Temple Univ.,
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. See StopBullying.gov, available at www.stopbullying.gov (follow "Recognize the Warning Signs" hyperlink). Just as schools have a responsibility to provide a safe environment for students free from messages advocating illegal drug use, see Morse, 551 U.S. 393,
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
While Kowalski does not seriously dispute the harassing character of the speech on the "S.A.S.H." webpage, she argues mainly that her conduct took place at home after school and that the forum she created was therefore subject to the full protection of the First Amendment. 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 web-page 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.
Of course, had Kowalski created the "S.A.S.H." group during school hours, using a school-provided computer and Internet connection, this case would be more clear-cut, as the question of where speech that was transmitted by the Internet "occurred" would not come into play. To be sure, a court could determine that speech originating outside of the schoolhouse gate but directed at persons in school and received by and acted on by them was in fact in-school speech. In that case, because it was determined to be in-school speech, its regulation would be permissible not only under Tinker but also, as vulgar and lewd in-school speech, under Fraser. See Fraser, 478 U.S. at 685, 106 S.Ct. 3159. But cf. Layshock v. Hermitage Sch. Dist.,
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, 89 S.Ct. 733; Sypniewski v. Warren Hills Reg'l Bd. of Educ.,
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. For example, in Boucher v. School Board of School District of Greenfield,
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.
At bottom, we conclude that the school was authorized to discipline Kowalski because her speech interfered with the work and discipline of the school. See Tinker,
Kowalski next contends that she was denied due process because she "was afforded neither adequate notice nor a meaningful opportunity to be heard before she was deprived of her right to an education and her right to free speech." She argues that "no language" in the Harassment, Bullying and Intimidation Policy puts students on notice that they "could be subjected to discipline at school for behavior outside of school" and that the school "did not provide the due process required by [its] own policy."
The defendants contend that Kowalski acknowledged receiving copies of the Student Handbook at the beginning of each school year and that the Student Handbook put Kowalski on notice of the Harassment, Bullying and Intimidation Policy, as well as the Student Code of Conduct, both of which prohibit harassment and bullying. They argue, moreover, that "it was reasonably foreseeable [to Kowalski] that [her] chat room could, and in fact did, reach the school premises and cause a substantial disruption" there. The defendants also assert that Kowalski was told about Shay N.'s complaint and allowed to respond before being punished and that "an appeal process was available, and used on her behalf."
While schools are required to provide students with some level of due process, "`maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and we have respected the value of preserving the informality of the student-teacher relationship.'" Fraser, 478 U.S. at 686, 106 S.Ct. 3159 (quoting New Jersey v. T.L.O.,
We are satisfied that the Musselman High School Harassment, Bullying and Intimidation Policy, in conjunction with the Student Code of Conduct, adequately put Kowalski on notice of the type of behavior that could be punished by school authorities. The Policy prohibits "any form of racial, sexual, religious/ethnic and disability harassment or violence or any bullying or intimidation by any student ... during any school-related activity or during any school-sponsored event," and the separate Student Code of Conduct "sets the requirements for the conduct of students in Berkeley County Schools in order to assure a nurturing and orderly, safe, drug-free, violence and harassment-free learning environment that supports student academic achievement and personal-social development." The Code provides explicitly that "a student will not bully/intimidate or harass another student."
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
With respect to Kowalski's claim that she did not receive an adequate opportunity to be heard, due process in this context only requires, "in connection with a suspension of 10 days or less, that 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." Goss v. Lopez,
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." Wofford v. Evans,
Finally, Kowalski challenges the district court's dismissal of her claim for intentional or negligent infliction of emotional distress. The district court observed that the claim for negligent infliction of emotional distress had no merit because the defendants' conduct did not endanger Kowalski's safety or cause her to fear for her safety, as required by West Virginia law. Brown v. City of Fairmont, 221 W.Va. 541,
Kowalski's role in the "S.A.S.H." webpage, which was used to ridicule and demean a fellow student, was particularly mean-spirited and hateful. The webpage called on classmates, in a pack, to target Shay N., knowing that it would be hurtful and damaging to her ability to sit with other students in class at Musselman High School and have a suitable learning experience. While each student in the "S.A.S.H." group might later attempt to minimize his or her role, at bottom, the conduct was indisputably harassing and bullying, in violation of Musselman High School's regulations prohibiting such conduct.
Kowalski asserts that the protections of free speech and due process somehow insulate her activities from school discipline because her activity was not sufficiently school-related to be subject to school discipline. Yet, every aspect of the webpage's design and implementation was school-related. Kowalski designed the website for "students," perhaps even against Shay N.; she sent it to students inviting them to join; and those who joined were mostly students, with Kowalski encouraging the commentary. The victim understood the attack as school-related, filing her complaint with school authorities. Ray Parsons, who provided the vulgar and lewd — indeed, defamatory — photographs understood
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.
The judgment of the district court is AFFIRMED.
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