Off-campus online student speech case is appealed to high court

Monday, October 17, 2011

Another student online speech case has been appealed to the U.S. Supreme Court, perhaps increasing the likelihood that the high court will clarify how far the arm of school authority extends to off-campus, online speech.

Kara Kowalski, a former high school student at Musselman High School in West Virginia, has petitioned for a writ of certiorari in a case involving school officials’ disciplining her for making negative comments in 2005 about another student online from her own home. Kowalski created a MySpace discussion page that included highly offensive statements that the other student was a slut who had herpes.

In July 2011, a three-judge panel of the 4th U.S. Circuit Court of Appeals ruled that school officials could suspend Kowalski without violating her First Amendment rights because school officials — under Tinker v. Des Moines Independent Community School District (1969) — could reasonably forecast that those online comments would create a disruption at school. The appeals court reasoned that the comments could snowball and create a copycat effect that would increase cyberbullying.

In her Oct. 11 cert. petition in Kowalski v. Berkeley County Schools (11-461)  Kowalski argues that the Court should take the case and explain whether the Tinker “substantial disruption” test applies to off-campus speech. The petition says that “in other circuits, off-campus student speech not directed at the school, no matter how controversial or offensive, is not subject to regulation by school officials.”

The petition also asks that the Supreme Court take the case to “clarify the meaning of ‘material or substantial disruption” under Tinker.

“If allowed to stand, the Fourth Circuit’s holding will eviscerate Tinker’s carefully-drawn boundaries and permit school officials in the Fourth Circuit to discipline students for virtually any off-campus speech that other students may find offensive,” the petition reads.

The time may be ripe for the high court to take  a student online speech case. A cert. petition already has been filed in a case out of the 2nd Circuit, Doninger v. Niehoff (11-113) . Another cert. petition, in a case out of the 3rd Circuit, Blue Mountain School District v. J.S., will be filed by Oct. 27.

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