The Fourth Circuit upheld the suspension of a high school cheerleader who admittedly launched a web site on which a fellow female student at her school was described as a “slut” and on which it was stated that the student “has herpes.”
Court papers tell the story of Kara Kowalski, the originator of the page, and the girl against whom she launched the attack, Shay N. In December 2005, Kowalski started a MySpace.com group discussion page from her home computer with the heading of “S.A.S.H.” Although Kowalski maintains that the S.A.S.H. header stood for “Students Against Sluts Herpes,” a classmate contends that the acronym actually stood for “Students against Shay’s Herpes.” Whichever, the only topic on the page was Shay.
Another student, Ray Parsons, using a school computer, posted a picture of himself and a friend both holding their noses while holding up a sign stating “Shay has herpes.” To further the humiliation, Parsons posted two more pictures of Shay which he had altered. The first showed Shay with a sign added at waist height that read, “Warning: Enter at your own risk.” In a second Shay photo, Parsons added a heading across the top reading “portrait of a whore,” and added red dots on to the girl’s face to simulate her having herpes. In the posting section, one student commented “wait til she [Shay] sees the page lol,” and to which another student responded “Haha.. screw her.”
In response to complaints to the school by Shay’s parents, Kowalski was called in to the office. While being talked to about the incident, she admitted to starting the S.A.S.H. site. Based on her admission to the behavior, Kowalski was issued a 10-day school suspension and a 90-day “social suspension,” meaning she would not be allowed to attend any school events in which she was not directly participating. Further punishments included her being removed from the cheerleading squad and her being banned from passing on her crown as the “Queen of Charm” in that year’s charm review, where last year she had been elected “Queen.”
Kowalski brought suit against the district and its officials under 42 U.S.C. Section 1983, contending among other things that her right to free speech under the First and Fourteenth Amendment had been violated. The lower court ruled against her and she appealed to the Fourth Circuit.
In its July 27th decision, Kowalski v. Berkeley County Schools, the Court upheld the rights of school administrators to punish students for off-campus harassing speech provided that, as in this case, the speech was sufficiently connected to the school. The Court noted that Kowalski had utilized the internet to launch a targeted attack on a fellow student. While the speech did not occur at school, the Court noted that the page’s name was “Students Against Shay’s Herpes,” thus focusing on the school environment. Further, the members of the group were all students at the school and that it was foreseeable that “the fallout from her conduct and the speech within the group would be felt in the school itself.” Finally, “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.”
The court decision cited the language of Tinker v. Des Moines Independent Community School District, the definitive court decision delineating the abridged rights of students to free speech.
“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 stated in applying Tinker.
This decision is another salvo in the increasing national focus on school bullying and harassment. Just recently, California explicitly updated its own school bullying law, adding language making it explicit that the law covered such behavior even if it occurred on a social media site (such as MySpace.)