‘Queen of Charm’ loses over speech outside school

‘Queen of Charm’ loses over speech outside school

By Peter Vieth
Published: July 29, 2011

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A public school system may suspend a student for posting ugly accusations about another student on a MySpace page, even though the activity was outside of school, the 4th U.S. Circuit Court of Appeals has decided.

The decision addresses an issue still undecided by the U.S. Supreme Court: Whether schools can regulate out-of-school speech targeting other students.

Kara Kowalski, a 12th-grader elected the “Queen of Charm” at Musselman High School in Berkeley County, W.Va., used her home computer in 2005 to create a MySpace discussion group that she titled “S.A.S.H.” At a deposition, she claimed the acronym meant “Students Against Sluts Herpes.” But a classmate said it meant, “Students Against Shay’s Herpes,” a reference to another student named Shay N.

A classmate posted a picture of a sign reading, “Shay has herpes.” Later, the classmate added photos of Shay herself, altered to suggest she had herpes and referring to her as a “whore.” Other students added comments encouraging the ridicule.

Shay and her parents complained to a vice principal. Humiliated, Shay stayed out of school for a day.

School officials concluded Kowalski’s page was a “hate website” that violated a school policy against harassment, bullying and intimidation. The penalty was a five-day suspension coupled with a 90-day “social suspension” that precluded Kowalski from crowning the next “Queen of Charm.” She also was not allowed to participate in cheerleading.

Kowalski alleged she became socially isolated from her peers and received cold treatment from teachers as a result of her punishment. She claimed she took prescription medication for depression.

Kowalski sued the school district and various officials, arguing she could not be punished for “private out-of-school speech” under the First Amendment. The district court granted summary judgment for the schools.

On appeal, the 4th Circuit panel defined the issue as whether Kowalski’s webpage was subject to the high school’s interest in “maintaining order in the school and protecting the well-being and educational rights of its students.”

Although the U.S. Supreme Court has yet to take up the issue of student speech targeting classmates for verbal abuse, the three-judge appeals court panel unanimously determined public schools have a compelling interest in regulating speech that disrupts school activities. Moreover, the panel found bullying is a “major concern” for schools nationwide. “[S]chool administrators must be able to prevent and punish harassment and bullying in order to provide a safe school environment conducive to learning,” wrote Judge Paul V. Niemeyer for the panel.

Kowalski’s webpage was “particularly mean-spirited and hateful” and her conduct was “indisputably harassing and bullying,” the court found. Although it was created away from school, “every aspect of the webpage’s design and implementation was school-related,” according to the court.

“[T]he Constitution is not written to hinder school administrators’ good faith efforts to address the problem,” the panel said, affirming summary judgment for the school district.

As always, please consult with a Virginia attorney about legal issues raised in this article.  Every situation is unique.

Tucker Griffin Barnes – Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.
Charlottesville, Virginia



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