The U.S. Court of Appeals for the Fourth Circuit recently upheld a school’s discipline of a student for engaging in off-campus cyberbullying of another student. In Kowalski v. Berkeley County Schools, — F.3d — (4th Cir. July 27, 2011), a student (Kara Kowalski) created a MySpace profile called “S.A.S.H.,” which she said was short for “Students Against Sluts Herpes.” Another student, however, claimed it really stood for “Students Against Shay’s Herpes,” referring to a student named Shay N. Kowalski invited about 100 people to join the page, and about 24 people joined. Students posted comments and images making fun of Shay N. One student posted a picture of Shay N. and put “red red dots on Shay N.’s face to simulate herpes and added a sign near her pelvic region, that read, ‘Warning: Enter at your own risk.’ In the second photograph, he captioned Shay N.’s face with a sign that read, ‘portrait of a whore.'”
After a complaint by Shay N. and an investigation, school officials determined that Kowalski created a “hate website” that violated school policy. Kowalski was suspended for 5 days and received a “socail suspension” for 90 days, unable to participate in various social events at the school.
Kowalski sued, claiming that the discipline violated her free speech rights under the First Amendment to the U.S. Constitution.
Under the “substantial disruption” test, as defined by the U.S. Supreme Court in Tinker v. Des Moines School District, 393 U.S. 503 (1969), the school must demonstrate “facts which might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities.”