MySpace or Everyone’s Space? By Marc Gold

Title and Citation The judicial citation is: Case 3:07-cv-00147-JPB Kara Kowalski, Plaintiff, v. Berkeley County Public Schools, et al., Defendants The judicial citation is: Case 3:07-cv-00147-JPB Civil Action No. 3:07CV147

Level or Type of Court United States District Court for the Northern District of West Virginia Martinsburg

Judge The honorable Judge John Preston Bailey

Facts of the Case A case that concerned civil rights claims that were perused by Kara Kowalski In December of 2005, Kowalski was a senior at Musselman High School in Berkeley County, West Virginia, was suspended her from school for five days for creating and posting to a MySpace webpage called "S.A.S.H.” Kowalski claims stood for "Students Against Sluts Herpes” and which was largely dedicated to ridiculing a fellow student A school official testified that other students may have assumed it meant “Students Against Shay’s Herpes”

Facts of the Case After creating the MySpace page, Kara invited approximately 100 people from her MySpace “friends” list to join the discussion group Some of the invitees posted comments or pictures referencing Shay One of Kara’s friends, Ray Parsons, posted a picture that read “Shay Has Herpes.” Kara, like many other people in the discussion group, commented on Ray’s pictures

Facts of the Case Shay and her parents learned about the page second- hand The next morning, Shay and her parents reported the incident to Respondent Ronald Stephens, who was the principal of Musselman High School, and to the police Principal Stephens filled out a harassment complaint against Kara for creating a hate website

Facts of the Case In response to the complaint from Shay and her parents, Principal Stephens summarily suspended Kara for ten days and placed her on a ninety-day social probation, meaning she could not attend any after-school event Kara was informed that she was kicked off the cheerleading squad as a result of the suspension The school also prohibited her from participating in the ceremonies to crown the new “charm queen”

Issues Count 1: Violation of plaintiff’s freedom of speech rights under the United States and West Virginia Constitutions for punishment received under the School Board’s Policy Count 2: Violation of plaintiff’s due process rights under the United States and West Virginia Constitutions due to the failure of the School Board’s Policy to provide sufficient notice of the conduct prohibited and due to the School Board’s failure to provide a sufficient appeal process for the disciplinary action Count 3: Violation of plaintiff’s right to equal protection under the United States and West Virginia Constitutions resulting from the School Board’s decision not to suspend or discipline other students maintaining similar pages on social networking cites

Issues Count 4: Violation of plaintiff’s right to be free from cruel and unusual punishments as provided for by the 8th Amendment to the United States Constitution and West Virginia Constitution Count 5 Declaratory: Judgment finding the School Board’s Policy unconstitutionally overbroad and/or vague Count 6 Injunction: Requiring the School Board to expunge the discipline referral and notation of suspension from plaintiff’s school records and requiring the School Board to send corrected copies of plaintiff’s records to any third parties that previously received transcripts

Issues Count 7: Plaintiff alleges that as a result of the individual defendants’ negligent and/or intentional actions, she has suffered “damage to her reputation, loss of enjoyment of life, severe emotional distress, depression, embarrassment, humiliation, and physical injury all resulting in conscious pain and suffering”

Holding Defendants motion to dismiss immunity Defendants motion to dismiss count 1 Defendants motion to dismiss count 2 Defendants motion to dismiss count 3 Defendants motion to dismiss count 4 Defendants motion to dismiss count 5 Defendants motion to dismiss count 6 Defendants motion to dismiss count 7

Defendants Motion to Dismiss Immunity The court decided that immunity should not be granted because immunity is an applicable charge of the primary claim. According to the prior court case of Gomez v. Toledo, 446 U.S. 635, 640 (1980) (stating that “this Court has never indicated that qualified immunity is relevant to the existence of the plaintiff’s cause of action; instead we have described it as a defense available to the official in question”

Defendants Motion to Dismiss Count 1 According to the court, the plaintiff failed to satisfy the constitutional requirements for standing mandated by Article III The plaintiff failed to support evidence that the application of school board policy disciplined her under the fact that they restricted her freedom of speech The plaintiff was also unable to identify future harm that the application of school board policy could impose on her Therefore, because of the lack of evidence from the plaintiff, the court decided in the favor of the defendants to grant in part, the dismissal of count 1 of the amended complaint

Defendants Motion to Dismiss Count 2 The plaintiff states that her due process rights had been violated in three different ways First the plaintiff claims the school board policy did not offer her adequate notice of her behavior The first part of the due process issue was upheld because the defendant’s application of the School Board’s Policy failed when they did not notify the students, of which were engaged in conduct, not on school grounds or at school functions could clearly be considered a policy or custom Therefore, the court deemed that the plaintiff has provided a suitable due process claim on the basis of lack of notice

Defendants Motion to Dismiss Count 2 The plaintiff states that her due process rights had been violated in three different ways Secondly, the plaintiff contended that the school board did not follow its’ normal appeal process when disciplining a student Court favored the plaintiff on this issue of due process was because the plaintiff was able to argue that the defendant’s did not follow the appeal process that is in accordance of the student handbook The defendant also required considerations of issues out-side of the discipline issue and should have been on public record, rather than a closed-door meeting; the court decided to deny the dismissal of this particular due process issue

Defendants Motion to Dismiss Count 2 The plaintiff states that her due process rights had been violated in three different ways Thirdly, the plaintiff claimed that the school board denied her from cheerleading and other school activities without an appeal process. According to prior court case decisions Truby v. Broadwater, and Farver v. Board of Educ. of Carrol County, 40 F. Supp. 2d 323, 324 (D. Md. 1999) (noting that, the Due Process Clause, under authority from both the Fourth Circuit and other courts, has clearly been held not to protect the interest of a child in participating in extracurricular activities (including sports The court deems that extra-curricular activities are not constitutionally protected liberty or property interest. Therefore, the court deemed that the third part of the due process issue would be dismissed from the court case.

Defendants Motion to Dismiss Count 3 The defendant tried to claim that the plaintiff did not sufficiently prove that she was being singled out and failed to provide evidence of other students webpages that were similar to hers The court called upon prior court cases that focused on the ‘class of one’ equal protection issue, “Where the plaintiff alleges that she has been irrationally treated differently from others similarly situated and that there is no rational basis for the difference in treatment” Willis v. Town of Marshall and Vill. Of Willowbrook v. Olech Therefore, based on these prior cases, the defendant’s request to have the third count dismissed in the court was denied in part

Defendants Motion to Dismiss Count 4 Plaintiff was stating that the defendant was violating the student’s rights to be free from cruel and unusual punishments The plaintiff was arguing that point by discussing that fact through her involvement in school and is proven by “in her senior year of high school, from privileges she had earned through her efforts and academic achievement In this particular case, the law of cruel and unusual punishment, as it is written in the West Virginia Constitution, pertains to criminal offensives; according to Ingraham v. Wright and Smith v. W. Va. Board of Education Due to the fact that this was not a criminal offense and just an issue of not following school board policy, the defendant’s request to have count 4 dismissed from the class was granted in part.

Defendants Motion to Dismiss Count 5 Plaintiff was claiming a declaratory judgment by stating that the School Board’s Policy was unconstitutionally overbroad and/or vague. According to Cole v. Oroville Union High School Dist. a plaintiff who no longer presents a live case or controversy may still maintain suit where “(1) the challenged action is too short in duration to be fully litigated before cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again”   In this particular class, the plaintiff did not prove that she would be ever be affected by the school board policy. So the plaintiff failed to meet the requirement of the exception of the same complaining party that will be subjected to the same action again; therefore, the court ruled in the favor of the defendant of having count 5 dismissed from the court.

Defendants Motion to Dismiss Count 6 Plaintiff’s claim for the injunctive requiring the School Board to expunge the discipline referral and notation of suspension from plaintiff’s school records The majority of the time, the court does not grant the right in favor of the plaintiff, when a student that has graduated makes a claim for injunctive relief Evidence that was presented to the court were deemed to be true and the presence of those documents in the plaintiff’s permanent file would rightly be considered a continuing harm to the extent that plaintiff might be required to submit such transcripts to third parties in the future Therefore, the court denied in part the defendants request to dismiss count 6 from the court.

Defendants Motion to Dismiss Count 7 Plaintiff alleges that as a result of the individual defendants’ negligence and/or intentional actions, she has suffered “damage to her reputation, loss of enjoyment of life, severe emotional distress, depression, embarrassment, humiliation, and physical injury all resulting in conscious pain and suffering Under West Virginia law, “[a]lthough physical injury is no longer a necessary element of a negligent infliction of emotional distress claim, such a cause of action generally must be premised on conduct that unreasonably endangers the plaintiffs [sic] physical safety or causes the plaintiff to fear for his or her physical safety.” Brown v. City of Fairmont According to the court, the plaintiff failed to divulge to the court enough evidence that the defendant acted so horrific and outrageous- as to surpass the limits of decency Therefore, based on the West Virginia law, the court deemed that the alleged discussion by the plaintiff was not enough to cause significant emotional distress Thus, the court granted in part the defendants request to dismiss count 7 from the court

Legal Doctrine Brown v. City of Fairmont Cole v. Oroville Union High School District Farver v. Board of Educ. of Carrol County Gomez v. Toledo Ingraham v. Wright Smith v. W. Va. Board of Education Truby v. Broadwater Vill. Of Willowbrook v. Olech Willis v. Town of Marshall

Significance This particular case will influence future cases, how administrations will educate students on internet issues and how school boards write their policies This particular case will most likely set the precedent regarding a multitude of online issues that will exist through out the country School boards will ensure that when they are going to discipline one student for posting something online that is disruptive toward the school and the educational practices of students, then the school will have a policy of consequences in place to ensure that every student receives the same consequences; therefore, there is a precedent set in place

Significance Districts and states are requiring schools to hold an assembly on internet safety and cyber bullying Schools are instituting district policies that are geared towards what students can and cannot do on the internet, as well as the consequences for violations that occur online

Significance As for the results of the case, I tend to side with the defendants arguments and majority of the court’s decisions that Judge Bailey determined I believe that Kowalski’s freedom of speech rights were not violated in this particular case because the district policy did not say that she could not post things online; however, the policy did state that she could not post things online that would be disruptive to school

Significance I believe that administration has to adhere to their school board policy and treat every single student the same way when it comes to disciplining a student against school board policy I hope that many school districts and students will learn from this particular case It is important that school districts utilize this particular case as a visual example for students to see what can happen to them when they post things online that can be detrimental to individuals and the school community