outline

Instructions

You are the principal of a high school. You need to formulate a consistent policy to deal with cyber-bullying of students off campus.

Choose one of the two positions below

l. Does the school have an obligation to monitor students' speech when they aren't on campus?

or

2. Do students have First Amendment rights to bully?

You are mindful of students' rights, but also of the damage of bullying. You are presenting your plan to the faculty.

Your assistant printed out this for you about a recent court decision. Please present your views in a Monroe's Motivated Sequence outline, labeling all the parts of your speech. (if you don’t know what this is just google Monroe's Motivated Sequence outline)

Daniel J. Solove. "Off-Campus Cpberbullping and the First Amendment. " The Huffington Post.

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 Shayls Helpes, " referring to a student named Shay N.

Kowalski invited about 100 people to join the page, and about 24 people joined. Students posted comrnents 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. Is face with a sign that read, 'porfrait 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 "social 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. "

The court concluded that the school was justified in imposing discipline under the substantial disruption test. A lengthy quote from the court's opinion is quite instructive (citations omitted):

According to a federal government initiative, student-on-student bullying is a "major concern" in schools across the country and can cause victims to become depressed and anxious, to be afraid to go to school, and to have thoughts of suicide. Just as schools have a responsibility to provide a safe environment for students free from messages advocating illegal drug use, schools have a duty to protect their students from harassment and bullying in the school environment. Far from being a situation where school authorities "suppress speech on political and social issues based on disagreement with the viewpoint expressed, " school administrators must be able to prevent and punish harassment and bullying in order to provide a safe school environment conducive to learning.

We are confident that Kowalski's speech caused the interference and disruption described in Tinker as being immune from First Amendment protection. The "S.A.S.H. " webpage functioned as a platform for Kowalski and her friends to direct verbal attacks towards classmate Shay N. The webpage contained cornments accusing Shay N. of having herpes and being a "slut," as well as photographs reinforcing those defamatory accusations by depicting a sign across her pelvic area, which stated, "Warning: Enter at your own risk" and labeling her portrait as that of a "whore." .

Kowalski argued that the speech took place at her home and should be outside the school's power to regulate, but the court concluded:

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. She also I-mew that the dialogue would and did take place among Musselman High School students whom she invited to join the "S.A.S.H. " group and that the fallout from her conduct and the speech within the group would be felt in the school itself.

There is surely a limit to the scope of a high school's interest in the order, safety, and well-being of its students when the speech at issue originates outside the schoolhouse gate. But we need not fully define that limit here, as we are satisfied that the nexus of Kowalski's speech to Musselman High Schools pedagogical interests was sufficiently strong to justify the action taken by school. . .

Given the targeted, defamatory nature of Kowalski's speech, aimed at a fellow classmate, it created "actual or nascent" substantial disorder and disruption in the school. First, the creation of the "S.A.S.H. " group forced Shay N. to miss school in order to avoid further abuse. Moreover, had the school not intervened, the potential for continuing and more serious harassment of Shay N. as well as other students was real.

Note the contrast between this case and the recent cases decided by the Third Circuit -- Lay shock v. Hermitage School District and J.S. v. Blue Mountain School District — where students made fake Myspace profiles to ridicule school officials. Why did the school win here while the schools failed in the Third Circuit cases?

One reason is that here in Kowalski, the speech involved another student and not a school official. Schools have a special obligation to help protect students from cyberbullying. Although anti-discrimination and anti-harassment law also protects school employees, courts seem to afford less protection to school employees than to students.

The primary reason is that in Kowalski, the school documented the nexus between the speech and the school and how it created a disruption. In Lay shock and J.S., the schools conceded that there was no actual disruption at the school. The stronger argument, made in J.S., was that the speech undermined the authority of school officials, but this argument was too abstract and generic for the court to accept. In contrast, the court in Kowalski is moved by the evidence about how the victim was affected.