RICHMOND, Va. (AP) — A federal appeals court on Wednesday upheld the suspension of a West Virginia student who created a web page suggesting another student had a sexually transmitted disease and invited classmates to comment.
A three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously refused to reinstate Kara Kowalski’s lawsuit against school officials in Berkeley County. She claimed her five-day suspension from Musselman High School in 2005 violated her free speech and due process rights, and that school officials lacked authority to punish her because she created the web page at home.
The appeals court said the web page was created primarily for Kowalski’s classmates, so the school had the right to discipline her for disrupting the learning environment.
Kowalski was a senior at Musselman when she created a MySpace page called “S.A.S.H.” She claimed it was an acronym for “Students Against Sluts Herpes.”
But a classmate said it stood for “Students Against Shay’s Herpes” and referred to a student who was the main subject of discussion on the page. The first of about two dozen students who joined the discussion group posted photos of the student, including one with red dots drawn over her face to simulate herpes.
Other students posted messages commenting on the photos and ridiculing the student, whose parents complained to school officials the next day. Officials concluded Kowalski had created a “hate website” in violation of the school’s anti-bullying policy.
Along with being suspended, Kowalski was prevented from crowning her successor as “Queen of Charm” in the school’s annual Charm Review and was kicked off the cheerleading squad. She claimed her punishment left her isolated and depressed, but she got no sympathy from the appeals court.
“Kowalski’s role in the ‘S.A.S.H.’ webpage, which was used to ridicule and demean a fellow student, was particularly mean-spirited and hateful,” Judge Paul V. Niemeyer wrote.
“Regretfully, she yet fails to see that such harassment and bullying is inappropriate and hurtful and that it must be taken seriously by school administrators,” he wrote.
Messages left for Kowalski’s attorney, Nancy A. Dalby, were not immediately returned Wednesday.
Although the ruling in the Kowalski case was unanimous, University of Arizona cyberbullying expert Sheri Bauman said such cases present “a real conundrum” for courts trying to balance students’ First Amendment rights against the need to maintain order in schools.
“This is all quite new. That’s what makes it so difficult for schools to decide when and where they have the option to intervene,” said Bauman, director of the university’s school counseling program and author of the book “Cyberbullying: What Counselors Need to Know.”
She said one of the issues that needs clarification is the definition of “substantial disruption” of the learning environment. She predicted that the U.S. Supreme Court eventually will be asked for guidance on this and other issues involving school cyberbullying.