Kowalski v. Berkeley County Sch.

• Citation: 271 Ed. Law Rep. 707,652 F.3d 565
• Decision Date: 27 July 2011
• Docket Number: No. 10–1098.,10–1098.
• Parties: 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.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

652 F.3d 565

271 Ed. Law Rep. 707

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.

No. 10–1098.

United States Court of Appeals, Fourth Circuit.

Argued: March 25, 2011.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.Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge DUNCAN and Judge AGEE joined.

OPINION

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 “school-related 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[s] 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., 393 U.S. 503, 513, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (internal quotation marks omitted). Accordingly, we affirm.

I

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 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 after hours 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. 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...