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Appeals court backs school punishment for W.Va. student's MySpace group
A 'new low' for student free speech?
July 28, 2011

VIRGINIA — Students can be punished at school for their Internet postings, even if made off campus, a three-judge panel of the 4th U.S. Circuit Court of Appeals ruled Wednesday.

In upholding the discipline of a West Virginia high school student whose MySpace group contained crude insults about another student, the Fourth Circuit found the speech firmly within the school's jurisdiction because it was disruptive to the high school and interfered with the ''rights of other students to be secure and to be let alone.''

Kara Kowalski sued Berkeley County Schools after being punished for creating the group, "S.A.S.H." that appeared to target a fellow student at Musselman High School. The group, which Kowalski says stands for "Students Against Sluts Herpes," contained several statements insulting "Shay N.," including one student's allegation that the acronym actually stood for "Students Against Shay's Herpes."

Kowalski was suspended and put on social probation, including removal from the cheerleading team, when Shay N. and her parents brought the issue to the school principal and the school determined the group was a "hate website."

The Fourth Circuit's decision relied heavily on the landmark Tinker v. Des Moines Independent Community School District case. It found that under Tinker, "public schools have a 'compelling interest' in regulating speech that interferes with or disrupts the work and discipline of the school… We are confident that Kowalski’s speech caused the interference and disruption described in Tinker as being immune to the First Amendment."

Writing for the unanimous panel, Judge Paul Niemeyer also suggested a court could go further, and allow schools to punish online speech simply because it is lewd or offensive.

"To be sure, a court could determine that speech originating outside of the schoolhouse gate but directed at persons in school and received by and acted on by them was in fact in-school speech," and punishable under the Supreme Court’s other student speech cases.

In this particular case, however, the court simply held that the MySpace group was disruptive under Tinker and had sufficient ties to the school.

"Kowalski indeed pushed her computer's keys in her home, but she knew that the electronic response would be, as it in fact was, published beyond her home and could reasonably be expected to reach the school or impact the school environment," according to the opinion.

The Tinker case focused on students who wore protest armbands to school. Frank LoMonte, executive director of the Student Press Law Center, took issue with the court applying that case to activity outside of school.

"This is the first case from a court of appeals expressly saying Tinker is the controlling standard [off campus], so this could be considered a new low point for student First Amendment rights," LoMonte said. "This is one of the most drastic stretches of school authority into off-campus speech ever approved by a federal court."

LoMonte said that although the court may disagree with the speech itself, the decision went too far in stripping away student First Amendment protections.

"The behavior is reprehensible, and everyone agrees it should be punished, but the right way to punish it is to call in the parents and not unleash the authority of state government," he said. "The circuit has left no stopping point for any off-campus behavior to be punished by the school just because someone complains to the school. That could be not only speech, but a bad romantic breakup or anything that causes a student to be upset and miss class."

Attorneys for both Kowalski and the school district were not immediately available for comment.

Kowalski's attorneys could ask the full Fourth Circuit to rehear the case, or petition the Supreme Court to review it. If not overturned, the decision is binding precedent in Maryland, North Carolina, South Carolina, Virginia and West Virginia.

Wednesday's decision follows a slate of off-campus speech rulings in the past several months. In April the 2nd U.S. Circuit Court of Appeals found that a Connecticut school did not violate “clearly established” free speech rights when it punished a student for a post on her LiveJournal blog. And in June the 3rd U.S. Circuit Court of Appeals rejected punishment of Pennsylvania students who made fake MySpace profiles mocking their principals.

By Emily T. Gerston, SPLC staff writer

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