Fourth Circuit Expands Schools’ Abilities to Punish Off-Campus Speech

By July 29, 2011

In a decision setting back student free speech rights, the United States Court of Appeals for the Fourth Circuit issued its opinion in the case of Kowalski v. Berkeley County Schools earlier this week. 

In 2005, Kara Kowalski, then a senior at Musselman High School in West Virginia, created a group webpage on MySpace called "S.A.S.H." While she claimed that it stood for "Students Against Slut Herpes," another student admitted that it actually stood for "Students Against Shay’s Herpes" — Shay (referred to as "Shay N." in the opinion) being a fellow student at Musselman High.  After Kowalski created the page and invited others to join and post content, a number of participants (mostly fellow Musselman students) posted derogatory images and comments relating to Shay. 

Shay’s parents complained about the page to the Musselman administration, which decided after investigation that Kowalski had created a "hate website" in contravention of school anti-bullying policies. Kowalski was suspended from school, and placed on a "social suspension," which restricted her ability to participate in certain school social activities. Musselman High School’s policy, under which Kowalski was punished, 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. [Emphasis added.]

Kowalski sued the school district, claiming, among other things, violations of her First Amendment right to free speech and Fourteenth Amendment right to due process. A federal district court found that the school could legally punish Kowalski’s speech, reasoning that it was "vulgar and offensive" and she encouraged other students to follow suit. The district court also found that Kowalski had adequate notice that she could be punished for her off-campus behavior.

On appeal, the United States Court of Appeals for the Fourth Circuit affirmed the district court, and in the process subjected high school students to punishment for virtually any speech occurring off-campus.

The court relied on the well-known Supreme Court case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), for the proposition that a school has a compelling interest in the work and discipline of the school environment, and thus has the authority to punish speech that "disrupts classwork, creates substantial disorder, or collides with or invades the rights of others." Of course, a desire to avoid "discomfort or unpleasantness" does not suffice under Tinker; the speech must "materially and substantially interfere" with the operation of the school. Tinker, 393 U.S. 503, 508-09.

In determining whether Kowalski’s speech had such an in-school effect as to justify disciplinary action, the Fourth Circuit seemed to operate on the assumption that saying nasty things about a person, or "bullying," de facto causes the required disruption. The opinion cited recent federal anti-bullying initiatives, explained that bullying is bad, and then went on to examine the content of the speech, finding that it constituted "bullying," and, from whole cloth, concluded that therefore it had created a substantial disruption. The court noted that Shay N. missed school due to the statements made on the webpage, and divined that if left unchecked by school administrators, the behavior in question would persist and become more severe. Moreover, the court decided that it did not matter that the webpage was made off of school grounds. Rather, because of the use of the word "Student" in the page title, and the nature of the Internet, the court found that Kowalski both intended and should have realized that the speech would reach the school grounds.

Unfortunately, the Fourth Circuit failed to actually explain how exactly the speech had an impact on the school environment, and how the hurt feelings of an individual constitute a substantial disruption of the order and discipline of the school. There appeared to be no indication that any negative statements about Shay N. were made at school, or that the webpage at all instigated any negative situations on school grounds. The court seems to have merely assumed that because someone’s feelings were hurt by another person, having to be in proximity to that person in school is so unbearable that ipso facto it causes a disruption. 

Let’s not pretend this kind of speech is pleasant or desirable: it’s not. But does suffering from a case of hurt feelings–even serious ones–really cause a substantial disruption? The administrators would likely argue that such name-calling and teasing infringes on the target’s rights, but does it? A student who calls names and teases may be acting childish or cruel, but it seems a stretch to claim that she is preventing her target from coming to school. We all must face speech that we don’t like, even speech that unfairly targets us and offends us. But isn’t the responsibility on us to either shake it off, or stand up and use our own voices? We’ve already seen a chilling impact on speech at the college level when individuals claim that others’ speech makes them feel uncomfortable and prevents them from fully enjoying their rights and privileges as students. Perhaps it was only a matter of time before the next float in the parade of horribles passed by.

Relatedly, the court’s analysis also renders a heckler’s veto fairly simple to accomplish, despite the fact that even in the school environment, a heckler’s veto is unconstitutional. All one has to do is claim that some speech, no matter where it occurred, severely hurt their feelings and have left them feeling vulnerable, and the speech would seemingly become punishable. This need not be in the form of name-calling or teasing as it did here. A student could take a political position, or possibly a religious position, that other students find hurtful and offensive. For example, if a student displays a Confederate flag in his bedroom window at home, what in this opinion would prevent a public school from punishing him? In refusing to clearly delineate where the line is drawn, the court has essentially given schools free reign to regulate any off-campus speech they dislike, so long as they can claim that someone’s feelings were hurt and that it would affect their ability to function in the school environment. For obvious reasons, the broad effect of this kind of policy is thoroughly untenable. School administrators are notorious for overreaching even without encouragement. It is frightening to imagine what might happen if a student, outside of school, began a campaign to remove an administrator, or unseat a school board member.

Unfortunately, the due process analysis in the opinion is equally bad. Kowalski claimed that she did not have adequate notice that speech outside of school could be regulated and punished, because the harassment policy on its face applies only to speech occurring "during any school-related activity or during any school-sponsored event."

The court examined this policy in the context of two portions of the "Student Code of Conduct," which read, in relevant part:

"[There is] the requirement for the conduct of students in Berkeley County Schools in order to assure a nurturing and orderly, safe, drug-free, violence and harassment-free learning environment that supports student academic achievement and personal-social development."

and

"[A] student will not bully/intimidate or harass another student."

Taking these three policies together, the court surmised that students were on notice that not only was speech that takes place in school subject to regulation, but so is any speech that could adversely affect the school environment. This is an extremely strained reading of the policies at best, a disingenuous one at worst. The harassment policy explicitly mentions only behavior that occurs on school grounds or at a school-related event. It is far more likely that these two additional policies would be interpreted by students in light of that policy, i.e., speech on school grounds. To interpret the policy that specifically mentions on-campus speech more broadly so as to cover off-campus speech in light of two policies that make no mention of context or location is wholly illogical. 

Moreover, the likely expectation of students in absence of explicit mention to the contrary is that only behavior at school or school-related activities is subject to the restrictions of the student code. It is plainly obvious that students at Musselman High School had no reason to believe that off-campus speech would be subject to disciplinary action when a policy explicitly only applies to on-campus speech. The court’s reading to the contrary reeks of its transparent, outcome-driven analysis. One wonders if there is any place on earth where a student could go to escape a public school administrator’s largely arbitrary regulation of his or her speech.

Perhaps the one silver lining in the opinion is that the Fourth Circuit seemed to at least partially narrow the holding to the specific facts of the case. Though the court’s analysis was deeply flawed, the court declined to fully define the limit to which school administrators may go in regulating off-campus speech, instead holding only that in this case, the school was within the limit. A small consolation indeed, but in that sense the ruling could have been even worse.

Nonetheless, this opinion strikes a serious blow against the rights of high school students, and drives the wedge between the Circuit Courts of Appeal on student speech even further, raising the stakes for an eventual Supreme Court showdown. While FIRE’s mission focuses on higher education, precedents such as these are extremely dangerous even to college students. We already see enough regulation of speech on college campuses based on supposed "intrusion on the rights of others." Opinions such as this only further embolden administrators to continue overreaching and regulating everything that students say, no matter when and where. It is clear that, at least in the Fourth Circuit, all student speech is in as much danger as ever. But FIRE stands ever ready to assist those who want to stand up for their rights.