Monday, October 22, 2012

Legal Brief: Kowalski v. Berkley County Schools

Case Name, Citation, Year

  • Kowalski v. Berkley County Schools, No. 10-1098 2011 3:07-cv-00147-JPB (4th Cir. 2011)

Facts of the Case

  • When Karla Kowalski was a senior at Musselman High School in Berkley County School District she was suspended for creating a MySpace page called S.A.S.H. (Students Against Sluts Herpes). The web page was used to invite 100 of Kowalski’s MySpace friends to join the page, two dozen Mussleman High School students were members of the page and used it to bully and harass another female student. Photos of Shay N. were placed on the site and ridiculing comments were left on the photos; in addition, the photos had been edited to make Shay N. look like she had herpes. Several students joined and viewed the MySpace page from school computers. The page was eventually discovered by the targeted student; once discovered the parents of Shay N. went to the school and filed harassment charges with the administration. The administration of the school disciplined Kowalski with a 10-day out of school suspension and a 90-day suspension from activities. Kowalski contends that the speech occurred outside of school; therefore, the school administration had no right to punish her for the MySpace site.


  • Did the school violate Kowalski’s First Amendment right to free speech with the punishment?
  • Did the school violate Kowalski’s Fourteenth Amendment right to due process and equal protection?


  • The appellate court upheld the lower court’s decision in favor of the school district.

Rationale or Justification

  • The MySpace site created by Kowalski was viewed at school and involved several students from the school; therefore, the school was within its rights to punish Kowalski. Kowalski’s hateful speech is not protected under free speech. The justices sighted the Tinker test as applicable because substantial disruption to the educational process was present. The justices also applied Morse v. Frederick by stating that the hateful language toward another student was inconsistent with the school’s mission; and although initiated off campus, clearly through school computers came to campus. Finally the court approached the problem from Bethel School District v. Fraser and determined that the speech in question was inappropriate social behavior, which the school has a duty to stop. The decision was written with an air of distaste toward Kowalski.

Personal Reaction to Decision

  • It was actually wonderful to find that the courts have defended the schools with regards to punishing bullies. Cyber-bullying is just as destructive as regular bullying, possibly even more destructive. In typical bullying, the students can at least go home and be free from the bully, but cyber-bullying follows the victim everywhere the Internet is available; furthermore, the victim knows that the attack still exists online where anyone can see it. The courts were correct to give school administrators the green light to tackle cyber-bullying occurring within their communities. The most shocking thing about this case, in my opinion, is Kowalski herself. Believing that somehow it is her rights that have been violated is sad, sad, sad. She should be ashamed of herself, but instead, she is fighting her 10-day suspension in court. I’m glad the court is not giving her the satisfaction to continue believing that she is right and the rest of the civilized world is wrong. It was an interesting counter-balance to the other case I looked at where a student had posted inappropriate material about the principal. In that case the court ruled that the principal was a public figure and could not expect a complete right to privacy. Thankfully the courts have made it clear that student-to-student harassment will not be tolerated and is not free speech.


  • School officials can feel comfortable going after cyber-bullies that operate within their school communities; especially, if there is any evidence that can link the online activity to impacting the school. For example, in this case, several of the witnesses admitted that they joined and/or viewed the MySpace page from a school computer. When the hurtful images and language about Shay N. reached the campus, it was like finding a smoking gun in the hands of Kowalski. The court mentioned that overwhelming evidence that the educational process was clearly disrupted  and that this type of hateful speech isn’t protected under free speech. School officials can feel free to punish cyber-bullies; the courts are on our side in this matter.

No comments:

Post a Comment