Kowalski v. Berkeley County Schools
2011 U.S. App. LEXIS 15419
| 4th Cir. | 2011Background
- Kowalski, a Musselman High School senior, created a MySpace group named S.A.S.H. targeting a classmate, Shay N., with defamatory posts and photos.
- The group was joined by about two dozen Musselman students, including Parsons who posted material from a school computer during an after-hours class.
- Shay N.’s parents complained to the school, prompting an investigation by Principal Stephens and Vice Principal Harden.
- Kowalski admitted creating the group but denied posting the photographs or comments; administrators concluded she violated the harassment policy.
- Kowalski was suspended for 5 days (after initial 10 days) and received a 90-day social suspension; she also faced other restrictions and claimed social ostracism and depression.
- The district court granted summary judgment, ruling the district could discipline Kowalski under Tinker for speech that interfered with school work and rights of others, and denied other claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Off-campus speech regulation and school discipline | Kowalski contends off-campus online speech cannot be punished | District may regulate off-campus speech if it disrupts school | Discipline permissible due to substantial disruption and nexus to school |
| Due process in school disciplinary proceedings | Kowalski asserts inadequate notice and opportunity to be heard | Policy and procedures provided notice and opportunity to respond | Due process satisfied for a 10-day suspension; Kowalski admitted conduct, so no extended hearing required |
| Emotional distress claims | Claims for intentional/negligent infliction of emotional distress exist | Claims lack evidentiary support and statutory elements | Affirmed district court's dismissal of these claims |
Key Cases Cited
- Tinker v. Des Moines Indep. Community Sch. Dist., 393 F.3d 503 (U.S. 1969) (school speech may be regulated if disruption to work or rights of others)
- Fraser v. Bethel Sch. Dist. No. 403, 478 U.S. 675 (U.S. 1986) (vulgar and lewd student speech may be regulated)
- Morse v. Frederick, 551 U.S. 393 (U.S. 2007) (schools may regulate speech promoting illegal drug use)
- Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008) (off-campus conduct foreseeably reaching school may be punished)
- Wisniewski v. Bd. of Educ., 494 F.3d 34 (2d Cir. 2007) (off-campus online speech can be regulated if disruption foreseen)
- Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243 (3d Cir. 2002) (authority to regulate speech for disruption to school)
- DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008) (recognition of school’s duty to regulate harassment to maintain safe environment)
- Layshock v. Hermitage Sch. Dist., 650 F.3d 205 (3d Cir. 2011) (en banc: online speech context; limits of school discipline)
- Goss v. Lopez, 419 U.S. 565 (U.S. 1975) (due process in suspensions; minimal notice and opportunity)
- Brown v. City of Fairmont, 221 W.Va. 541, 655 S.E.2d 563 (W. Va. 2007) (emotional distress standards under WV law)