Kowalski v. Berkeley County Schools

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KARA KOWALSKI, 

Plaintiff-Appellant,

v.

BERKELEY COUNTY SCHOOLS, a

public school district; MANNY P.

ARVON, II, Superintendent, in his

official capacity; RONALD

STEPHENS, Principal, in his official

capacity and individually; BECKY  No. 10-1098

J. HARDEN, Vice Principal, in her

official capacity and individually;

BUFFY ASHCRAFT, cheerleading

coach, in her official capacity and

individually; RICK DEUELL,

Assistant Superintendent, in his

official capacity,

Defendants-Appellees.



Appeal from the United States District Court

for the Northern District of West Virginia, at Martinsburg.

John Preston Bailey, Chief District Judge.

(3:07-cv-00147-JPB)

Argued: March 25, 2011

Decided: July 27, 2011

Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.

2 KOWALSKI v. BERKELEY COUNTY SCHOOLS

Affirmed by published opinion. Judge Niemeyer wrote the

opinion, in which Judge Duncan and Judge Agee joined.

COUNSEL

ARGUED: Nancy A. Dalby, Charles Town, West Virginia,

for Appellant. Tracey Brown Eberling, STEPTOE & JOHN-

SON, LLP, Martinsburg, West Virginia, for Appellees. ON

BRIEF: Jason P. Foster, STEPTOE & JOHNSON, LLP, Mar-

tinsburg, West Virginia, for Appellees.

OPINION

NIEMEYER, Circuit Judge:

When Kara Kowalski was a senior at Musselman High

School in Berkeley County, West Virginia, school administra-

tors suspended her from school for five days for creating and

posting to a MySpace.com webpage called "S.A.S.H.," which

Kowalski claims stood for "Students Against Sluts Herpes"

and which was largely dedicated to ridiculing a fellow stu-

dent. Kowalski commenced this action, under 42 U.S.C.

§ 1983, against the Berkeley County School District and five

of its officers, contending that in disciplining her, the defen-

dants violated her free speech and due process rights under

the First and Fourteenth Amendments. She alleges, among

other things, that the School District was not justified in regu-

lating her speech because it did not occur during a "school-

related activity," but rather was "private out-of-school

speech."

The district court entered summary judgment in favor of

the defendants, concluding that they were authorized to pun-

ish Kowalski because her webpage was "created for the pur-

KOWALSKI v. BERKELEY COUNTY SCHOOLS 3

pose of inviting others to indulge in disruptive and hateful

conduct," which caused an "in-school disruption."

Reviewing the summary judgment record de novo, we con-

clude that in the circumstances of this case, the School Dis-

trict’s imposition of sanctions was permissible. Kowalski used

the Internet to orchestrate a targeted attack on a classmate,

and did so in a manner that was sufficiently connected to the

school environment as to implicate the School District’s rec-

ognized authority to discipline speech which "materially and

substantially interfere[es] with the requirements of appropri-

ate discipline in the operation of the school and collid[es] with

the rights of others." Tinker v. Des Moines Indep. Community

Sch. Dist., 393 U.S. 503, 513 (1969) (internal quotation marks

omitted). Accordingly, we affirm.

I

On December 1, 2005, Kara Kowalski, who was then a

12th grade student at Musselman High School in the Berkeley

County School District, returned home from school and, using

her home computer, created a discussion group webpage on

MySpace.com with the heading "S.A.S.H." Under the web-

page’s title, she posted the statement, "No No Herpes, We

don’t want no herpes." Kowalski claimed in her deposition

that "S.A.S.H." was an acronym for "Students Against Sluts

Herpes," but a classmate, Ray Parsons, stated that it was an

acronym for "Students Against Shay’s Herpes," referring to

another Musselman High School Student, Shay N., who was

the main subject of discussion on the webpage.

After creating the group, Kowalski invited approximately

100 people on her MySpace "friends" list to join the group.

MySpace discussion groups allow registered users to post and

respond to text, comments, and photographs in an interactive

fashion. Approximately two dozen Musselman High School

students responded and ultimately joined the group. Kowalski

later explained that she had hoped that the group would

4 KOWALSKI v. BERKELEY COUNTY SCHOOLS

"make other students actively aware of STDs," which were a

"hot topic" at her school.

Ray Parsons responded to the MySpace invitation at 3:40

p.m. and was the first to join the group, doing so from a

school computer during an after hours class at Musselman

High School. Parsons uploaded a photograph of himself and

a friend holding their noses while displaying a sign that read,

"Shay Has Herpes," referring to Shay N. The record of the

webpage shows that Kowalski promptly responded, stating,

"Ray you are soo funny!=)" It shows that shortly thereafter,

she posted another response to the photograph, stating that it

was "the best picture [I]’ve seen on myspace so far! ! ! !" Sev-

eral other students posted similar replies. Parsons also

uploaded to the "S.A.S.H." webpage two additional photo-

graphs of Shay N., which he edited. In the first, he had drawn

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."

The commentary posted on the "S.A.S.H." webpage mostly

focused on Shay N. The first five comments were posted by

other Musselman High School students and ridiculed the pic-

tures of Shay N. One student stated that "shay knows about

the sign" and then stated, "wait til she sees the page lol." (The

abbreviation "lol" means "laugh out loud" or "laughing out

loud.") The next comment replied, "Haha.. screw her" and

repeatedly stated, "This is great." After expressing her

approval of the postings, this student noted the "Shay has her-

pes sign" and stated, "Kara sent me a few interesting pics.

. . Would you be interested in seeing them Ray?" One student

posted, "Kara= My Hero," and another said, "your so awe-

some kara...i never thought u would mastermind a group that

hates [someone] tho, lol." A few of the posts assumed that

Kowalski had posted the photographs of Shay N., but Parsons

later clarified that it was he who had posted the photographs.

KOWALSKI v. BERKELEY COUNTY SCHOOLS 5

A few hours after the photographs and comments had been

posted to the MySpace.com page, Shay N.’s father called Par-

sons on the telephone and expressed his anger over the photo-

graphs. Parsons then called Kowalski, who unsuccessfully

attempted to delete the "S.A.S.H." group and to remove the

photographs. Unable to do so, she renamed the group "Stu-

dents Against Angry People."

The next morning, Shay N.’s parents, together with Shay,

went to Musselman High School and filed a harassment com-

plaint with Vice Principal Becky Harden regarding the discus-

sion group, and they provided Harden with a printout of the

"S.A.S.H." webpage. Shay thereafter left the school with her

parents, as she did not want to attend classes that day, feeling

uncomfortable about sitting in class with students who had

posted comments about her on the MySpace webpage.

After receiving Shay N.’s complaint, Principal Ronald Ste-

phens contacted the central school board office to determine

whether the issue was one that should be addressed with

school discipline. A school board official indicated that disci-

pline was appropriate. Principal Stephens then conducted an

investigation into the matter, during which he and Vice Prin-

cipal Harden interviewed the students who had joined the

"S.A.S.H." group to determine who posted the photographs

and comments. As part of the investigation, Principal Ste-

phens and Vice Principal Harden questioned Parsons, who

admitted that he had posted the photographs. Vice Principal

Harden met with Kowalski, who admitted that she had created

the "S.A.S.H." group but denied that she posted any of the

photographs or disparaging remarks.

School administrators concluded that Kowalski had created

a "hate website," in violation of the school policy against "ha-

rassment, bullying, and intimidation." For punishment, they

suspended Kowalski from school for 10 days and issued her

a 90-day "social suspension," which prevented her from

attending school events in which she was not a direct partici-

6 KOWALSKI v. BERKELEY COUNTY SCHOOLS

pant. Kowalski was also prevented from crowning the next

"Queen of Charm" in that year’s Charm Review, having been

elected "Queen" herself the previous year. In addition, she

was not allowed to participate on the cheerleading squad for

the remainder of the year. After Kowalski’s father asked

school administrators to reduce or revoke the suspension,

Assistant Superintendent Rick Deuell reduced Kowalski’s

out-of-school suspension to 5 days, but retained the 90-day

social suspension.

Kowalski claims that, as a result of her punishment, she

became socially isolated from her peers and received cold

treatment from teachers and administrators. She stated that

she became depressed and began taking prescription medica-

tion for her depression.

Kowalski acknowledged that at the beginning of each

school year, including her senior year, she had received a Stu-

dent Handbook which included the School District’s Harass-

ment, Bullying, and Intimidation Policy, as well as the

Student Code of Conduct. The Harassment, Bullying, and

Intimidation Policy prohibited "any form of . . . sexual . . .

harassment . . . or any bullying or intimidation by any student

. . . during any school-related activity or during any

education-sponsored event, whether in a building or other

property owned, use[d] or operated by the Berkeley Board of

Education." The Policy defined "Bullying, Harassment and/or

Intimidation" as "any intentional gesture, or any intentional

written, verbal or physical act that"

1. A reasonable person under the circumstances

should know will have the effect of:

a. Harming a student or staff member;

***

KOWALSKI v. BERKELEY COUNTY SCHOOLS 7

2. Is sufficiently inappropriate, severe, persistent,

or pervasive that it creates an intimidating, threaten-

ing or abusive educational environment for a student.

The policy also provided that violators would be suspended

and that disciplinary actions could be appealed.

The Student Code of Conduct provided, "All students

enrolled in Berkeley County public schools shall behave in a

safe manner that promotes a school environment that is nur-

turing, orderly, safe, and conducive to learning and personal-

social development." It also committed students to "help

create an atmosphere free from bullying, intimidation and

harassment" and to "treat others with respect" and "demon-

strate compassion and caring." The Code classified "Bully-

ing/Harassment/Intimidation" as a "Level III Violation" with

possible consequences including an out-of-school suspension

up to 10 days; signing a behavioral contract; being denied par-

ticipation in class and/or school activities; and a social sus-

pension of up to one semester. Before punishing a student

under the Student Code of Conduct, a principal was required

to "immediately undertake or authorize an investigation" of

the incident and complaint, including "personal interviews

with the complain[an]t, the individual(s) against whom the

complaint is filed, and others who may have knowledge of the

alleged incident(s) or circumstances giving rise to the com-

plaint."

The school administrators’ meetings with Kowalski and the

other students involved in the "S.A.S.H." webpage were

intended to fulfill the procedures described in the Student

Handbook.

Kowalski commenced this action in November 2007

against the Berkeley County School District, Superintendent

Manny Arvon (in his official capacity), Principal Ronald Ste-

phens (in his official and individual capacities), Vice Princi-

pal Becky Harden (in her official and individual capacities),

8 KOWALSKI v. BERKELEY COUNTY SCHOOLS

cheerleading coach Buffy Ashcraft (in her official and indi-

vidual capacities), and Assistant Superintendent Rick Deuell

(in his official capacity), alleging free speech violations under

the First Amendment, due process violations under the Fifth

Amendment (which Kowalski has acknowledged should have

been under the Fourteenth Amendment), cruel and unusual

punishment under the Eighth Amendment, and equal protec-

tion violations under the Fourteenth Amendment. The com-

plaint also alleged violations of corresponding provisions of

the West Virginia Constitution and a state law claim for inten-

tional or negligent infliction of emotional distress. In addition

to damages, Kowalski sought a declaratory judgment that the

School District’s harassment policy was unconstitutionally

vague or overbroad and an injunction requiring the school to

expunge any record of her discipline.

On the defendants’ motion to dismiss the complaint, the

district court dismissed Kowalski’s free speech claim for lack

of standing, concluding that she failed to allege that she had

been disciplined under the School District’s policy for engag-

ing in speech protected by the First Amendment. In a later rul-

ing denying Kowalski’s motion for reconsideration, however,

the district court recognized that Kowalski had engaged in

speech. Nonetheless, it held that Kowalski lacked standing

because her injury would "not be redressed by a favorable

decision." Despite this ruling, the district court revisited the

merits of Kowalski’s free speech claim when it denied her

subsequent motion for reconsideration and again when it con-

sidered the defendants’ motion for summary judgment on

Kowalski’s remaining claims. In ruling on the summary judg-

ment motion, the court concluded that "the defendants could

legitimately take action for [Kowalski’s] vulgar and offensive

speech and her encouragement of other students to follow

suit." The district court also dismissed Kowalski’s cruel and

unusual punishment claim.

In granting summary judgment to the defendants, in addi-

tion to ruling against Kowalski on her free speech claim, the

KOWALSKI v. BERKELEY COUNTY SCHOOLS 9

district court denied Kowalski’s due process claim, conclud-

ing (1) that Kowalski was on notice that she could be pun-

ished for her off-campus behavior and (2) that she was

provided with an opportunity to be heard prior to her suspen-

sion. The court also denied Kowalski’s state law claims and

her equal protection claim, with regard to which she had

failed to produce any evidence. Finally, the court denied

Kowalski’s motion for reconsideration.

Kowalski appealed the district court’s rulings on her free

speech and due process claims under the U.S. Constitution

and her state law claim for intentional or negligent infliction

of emotional distress. At oral argument, she stipulated that we

should treat the district court’s judgment as granting summary

judgment (rather than a motion to dismiss) on the issues

appealed. We review the district court’s rulings de novo. See

Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th Cir.

1997).

II

Kowalski contends first that the school administrators vio-

lated her free speech rights under the First Amendment by

punishing her for speech that occurred outside the school. She

argues that because this case involved "off-campus, non-

school related speech," school administrators had no power to

discipline her. As she asserts, "The [Supreme] Court has been

consistently careful to limit intrusions on students’ rights to

conduct taking place on school property, at school functions,

or while engaged in school-sponsored or school-sanctioned

activity." She maintains that "no Supreme Court case address-

ing student speech has held that a school may punish students

for speech away from school—indeed every Supreme Court

case addressing student speech has taken pains to emphasize

that, were the speech in question to occur away from school,

it would be protected."

The Berkeley County School District and its administrators

contend that school officials "may regulate off-campus behav-

10 KOWALSKI v. BERKELEY COUNTY SCHOOLS

ior insofar as the off-campus behavior creates a foreseeable

risk of reaching school property and causing a substantial dis-

ruption to the work and discipline of the school," citing Don-

inger v. Niehoff, 527 F.3d 41 (2d Cir. 2008). Relying on

Doninger, the defendants note that Kowalski created a web-

page that singled out Shay N. for harassment, bullying and

intimidation; that it was foreseeable that the off-campus con-

duct would reach the school; and that it was foreseeable that

the off-campus conduct would "create a substantial disruption

in the school."

The question thus presented is whether Kowalski’s activity

fell within the outer boundaries of the high school’s legitimate

interest in maintaining order in the school and protecting the

well-being and educational rights of its students.

The First Amendment prohibits Congress and, through the

Fourteenth Amendment, the States from "abridging the free-

dom of speech." U.S. Const. amend. I; Gitlow v. New York,

268 U.S. 652 (1925). It is a "bedrock principle" of the First

Amendment that "the government may not prohibit the

expression of an idea simply because society finds the idea

itself offensive or disagreeable." Texas v. Johnson, 491 U.S.

397, 414 (1989).

While students retain significant First Amendment rights in

the school context, their rights are not coextensive with those

of adults. See Tinker v. Des Moines Indep. Community Sch.

Dist., 393 U.S. 503, 506 (1969). Because of the "special char-

acteristics of the school environment," id. at 505, school

administrators have some latitude in regulating student speech

to further educational objectives. Thus in Tinker, the Court

held that student speech, consisting of wearing armbands in

political protest against the Vietnam War, was protected

because it did not "‘materially and substantially interfer[e]

with the requirements of appropriate discipline in the opera-

tion of the school’ [or] collid[e] with the rights of others," id.

at 513 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir.

KOWALSKI v. BERKELEY COUNTY SCHOOLS 11

1966)), and thus did not "materially disrupt[ ] classwork or

involve[ ] substantial disorder or invasion of the rights of oth-

ers," id. Student speech also may be regulated if it is other-

wise "vulgar and lewd." See Bethel Sch. Dist. No. 403 v.

Fraser, 478 U.S. 675, 685 (1986). Finally, the Supreme Court

has held that school administrators are free to regulate and

punish student speech that encourages the use of illegal drugs.

Morse v. Frederick, 551 U.S. 393 (2007).

Although the Supreme Court has not dealt specifically with

a factual circumstance where student speech targeted class-

mates for verbal abuse, in Tinker it recognized the need for

regulation of speech that interfered with the school’s work

and discipline, describing that interference as speech that "dis-

rupts classwork," creates "substantial disorder," or "collid[es]

with" or "inva[des]" "the rights of others." Tinker, 393 U.S.

at 513.

In Tinker, the Court pointed out at length how wearing

black armbands in protest against the Vietnam War was pas-

sive and did not create "disorder or disturbance" and therefore

did not interfere with the school’s work or collide with other

students’ rights "to be secure and to be let alone." 393 U.S.

at 508. Of course, a mere desire to avoid "discomfort and

unpleasantness" was an insufficient basis to regulate the

speech; there had to be disruption in the sense that the speech

"would materially and substantially interfere with the require-

ments of appropriate discipline in the operation of the

school." Id. at 509 (quoting Burnside, 363 F.2d at 749). The

Court amplified the nature of the disruption it had in mind

when it stated:

[C]onduct by [a] student, in class or out of it, which

for any reason—whether it stems from time, place,

or type of behavior—materially disrupts classwork

or involves substantial disorder or invasion of the

rights of others is, of course, not immunized by the

constitutional guarantee of freedom of speech.

12 KOWALSKI v. BERKELEY COUNTY SCHOOLS

Id. at 513.

The Tinker Court referred to this amplified statement of its

test later in its opinion in shorthand when it concluded that the

regulation of armbands "would violate the constitutional

rights of students, at least if it could not be justified by a

showing that the students’ activities would materially and

substantially disrupt the work and discipline of the school."

Id. (emphasis added). Because, in Tinker, the students’ wear-

ing of the armbands "neither interrupted school activities nor

sought to intrude in the school affairs or the lives of others,"

there was "no interference with work and no disorder" to jus-

tify regulation of the speech. Id. at 514.

Thus, the language of Tinker supports the conclusion that

public schools have a "compelling interest" in regulating

speech that interferes with or disrupts the work and discipline

of the school, including discipline for student harassment and

bullying. See DeJohn v. Temple Univ., 537 F.3d 301, 319-20

(3d Cir. 2008).

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 anx-

ious, to be afraid to go to school, and to have thoughts of sui-

cide. See StopBullying.gov, available at www.stopbullying

.gov (follow "Recognize the Warning Signs" hyperlink). Just

as schools have a responsibility to provide a safe environment

for students free from messages advocating illegal drug use,

see Morse, 551 U.S. 393, schools have a duty to protect their

students from harassment and bullying in the school environ-

ment, cf. Lowery v. Euverard, 497 F.3d 584, 596 (6th Cir.

2007) ("School officials have an affirmative duty to not only

ameliorate the harmful effects of disruptions, but to prevent

them from happening in the first place"). Far from being a sit-

uation where school authorities "suppress speech on political

and social issues based on disagreement with the viewpoint

expressed," Morse, 551 U.S. at 423 (Alito, J., concurring),

KOWALSKI v. BERKELEY COUNTY SCHOOLS 13

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 inter-

ference 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 comments 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." One student’s post-

ing dismissed any concern for Shay N.’s reaction with a com-

ment that said, "screw her." This is not the conduct and

speech that our educational system is required to tolerate, as

schools attempt to educate students about "habits and manners

of civility" or the "fundamental values necessary to the main-

tenance of a democratic political system." Fraser, 478 U.S. at

681 (internal quotation marks and citations omitted).

While Kowalski does not seriously dispute the harassing

character of the speech on the "S.A.S.H." webpage, she

argues mainly that her conduct took place at home after

school and that the forum she created was therefore subject to

the full protection of the First Amendment. This argument,

however, raises the metaphysical question of where her

speech occurred when she used the Internet as the medium.

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 environ-

ment. She also knew 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. Indeed, the group’s name was "Students

14 KOWALSKI v. BERKELEY COUNTY SCHOOLS

Against Sluts Herpes" and a vast majority of its members

were Musselman students. As one commentator on the web-

page observed, "wait til [Shay N.] sees the page lol." More-

over, as Kowalski could anticipate, Shay N. and her parents

took the attack as having been made in the school context, as

they went to the high school to lodge their complaint.

There is surely a limit to the scope of a high school’s inter-

est 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 satis-

fied that the nexus of Kowalski’s speech to Musselman High

School’s pedagogical interests was sufficiently strong to jus-

tify the action taken by school officials in carrying out their

role as the trustees of the student body’s well-being.

Of course, had Kowalski created the "S.A.S.H." group dur-

ing school hours, using a school-provided computer and Inter-

net connection, this case would be more clear-cut, as the

question of where speech that was transmitted by the Internet

"occurred" would not come into play. To be sure, a court

could determine that speech originating outside of the school-

house gate but directed at persons in school and received by

and acted on by them was in fact in-school speech. In that

case, because it was determined to be in-school speech, its

regulation would be permissible not only under Tinker but

also, as vulgar and lewd in-school speech, under Fraser. See

Fraser, 478 U.S. at 685. But cf. Layshock v. Hermitage Sch.

Dist., No. 07-4465, ___ F.3d ___, 2011 WL 2305970 (3d Cir.

2011) (en banc) (holding that a school could not punish a stu-

dent for online speech merely because the speech was vulgar

and reached the school). We need not resolve, however,

whether this was in-school speech and therefore whether Fra-

ser could apply because the School District was authorized by

Tinker to discipline Kowalski, regardless of where her speech

originated, because the speech was materially and substan-

tially disruptive in that it "interfer[ed] . . . with the schools’

KOWALSKI v. BERKELEY COUNTY SCHOOLS 15

work [and] colli[ded] with the rights of other students to be

secure and to be let alone." See Tinker, 393 U.S. at 508, 513.

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. See

Tinker, 393 U.S. at 508, 513; Sypniewski v. Warren Hills

Reg’l Bd. of Educ., 307 F.3d 243, 257 (3d Cir. 2002) (indicat-

ing that administrators may regulate student speech any time

they have a "particular and concrete basis" for forecasting

future substantial disruption). 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. Experience sug-

gests that unpunished misbehavior can have a snowballing

effect, in some cases resulting in "copycat" efforts by other

students or in retaliation for the initial harassment.

Other courts have similarly concluded that school adminis-

trators’ authority to regulate student speech extends, in the

appropriate circumstances, to speech that does not originate at

the school itself, so long as the speech eventually makes its

way to the school in a meaningful way. For example, in Bou-

cher v. School Board of School District of Greenfield, 134

F.3d 821, 829 (7th Cir. 1998), the Seventh Circuit held that

a student was not entitled to a preliminary injunction prohibit-

ing his punishment when the student wrote articles for an

independent newspaper that was distributed at school. And

again in Doninger, the Second Circuit concluded, after a stu-

dent applied for a preliminary injunction in a factual circum-

stance not unlike the one at hand, that a school could

discipline a student for an out-of-school blog post that

included vulgar language and misleading information about

school administrators, as long as it was reasonably foresee-

able that the post would reach the school and create a substan-

tial disruption there. See Doninger, 527 F.3d at 48-49. The

court explained, "a student may be disciplined for expressive

16 KOWALSKI v. BERKELEY COUNTY SCHOOLS

conduct, even conduct occurring off school grounds, when

this conduct ‘would foreseeably create a risk of substantial

disruption within the school environment,’ at least when it

was similarly foreseeable that the off-campus expression

might also reach campus." Id. at 48 (quoting Wisniewski v.

Bd. of Educ., 494 F.3d 34, 40 (2d Cir. 2007)). Cf. J.S. ex rel.

Snyder v. Blue Mountain Sch. Dist., No. 08-4138, ___ F.3d

___, 2011 WL 2305973 (3d Cir. 2011) (en banc) (divided

court assuming without deciding that the Tinker substantial

disruption test applies to online speech harassing a school

administrator).

Thus, even though Kowalski was not physically at the

school when she operated her computer to create the webpage

and form the "S.A.S.H." MySpace group and to post com-

ments there, other circuits have applied Tinker to such cir-

cumstances. To be sure, it was foreseeable in this case that

Kowalski’s conduct would reach the school via computers,

smartphones, and other electronic devices, given that most of

the "S.A.S.H." group’s members and the target of the group’s

harassment were Musselman High School students. Indeed,

the "S.A.S.H." webpage did make its way into the school and

was accessed first by Musselman student Ray Parsons at 3:40

p.m., from a school computer during an after hours class. Fur-

thermore, as we have noted, it created a reasonably foresee-

able substantial disruption there.

At bottom, we conclude that the school was authorized to

discipline Kowalski because her speech interfered with the

work and discipline of the school. See Tinker, 393 U.S. at

513; Doninger, 527 F.3d at 51-52.

III

Kowalski next contends that she was denied due process

because she "was afforded neither adequate notice nor a

meaningful opportunity to be heard before she was deprived

of her right to an education and her right to free speech." She

KOWALSKI v. BERKELEY COUNTY SCHOOLS 17

argues that "no language" in the Harassment, Bullying and

Intimidation Policy puts students on notice that they "could be

subjected to discipline at school for behavior outside of

school" and that the school "did not provide the due process

required by [its] own policy."

The defendants contend that Kowalski acknowledged

receiving copies of the Student Handbook at the beginning of

each school year and that the Student Handbook put Kowalski

on notice of the Harassment, Bullying and Intimidation Pol-

icy, as well as the Student Code of Conduct, both of which

prohibit harassment and bullying. They argue, moreover, that

"it was reasonably foreseeable [to Kowalski] that [her] chat

room could, and in fact did, reach the school premises and

cause a substantial disruption" there. The defendants also

assert that Kowalski was told about Shay N.’s complaint and

allowed to respond before being punished and that "an appeal

process was available, and used on her behalf."

While schools are required to provide students with some

level of due process, "‘maintaining security and order in the

schools requires a certain degree of flexibility in school disci-

plinary procedures, and we have respected the value of pre-

serving the informality of the student-teacher relationship.’"

Fraser, 478 U.S. at 686 (quoting New Jersey v. T.L.O., 469

U.S. 325, 340 (1985)). Moreover, schools require this flexibil-

ity because they "need . . . to control such a wide range of dis-

ruptive behavior." Sypniewski, 307 F.3d at 266. In other

words, "the school disciplinary rules need not be as detailed

as a criminal code which imposes criminal sanctions." Fraser,

478 U.S. at 686.

We are satisfied that the Musselman High School Harass-

ment, Bullying and Intimidation Policy, in conjunction with

the Student Code of Conduct, adequately put Kowalski on

notice of the type of behavior that could be punished by

school authorities. The Policy prohibits "any form of racial,

sexual, religious/ethnic and disability harassment or violence

18 KOWALSKI v. BERKELEY COUNTY SCHOOLS

or any bullying or intimidation by any student . . . during any

school-related activity or during any school-sponsored event,"

and the separate Student Code of Conduct "sets the require-

ments for the conduct of students in Berkeley County Schools

in order to assure a nurturing and orderly, safe, drug-free, vio-

lence and harassment-free learning environment that supports

student academic achievement and personal-social develop-

ment." The Code provides explicitly that "a student will not

bully/intimidate or harass another student."

Although the prohibitions against harassment and bullying

applied in a "school-related" context, both the Harassment,

Bullying and Intimidation Policy and the Student Code of

Conduct applied when conduct could adversely affect the

school environment. Thus, while the prohibited conduct had

to be related to the school, this is not to say that volatile con-

duct was only punishable if it physically originated in a

school building or during the school day. Rather, the prohibi-

tions are designed to regulate student behavior that would

affect the school’s learning environment. Because the

Internet-based bullying and harassment in this case could rea-

sonably be expected to interfere with the rights of a student

at Musselman High School and thus disrupt the school learn-

ing environment, Kowalski was indeed on notice that Mussel-

man High School administrators could regulate and punish the

conduct at issue here.

With respect to Kowalski’s claim that she did not receive

an adequate opportunity to be heard, due process in this con-

text only requires, "in connection with a suspension of 10

days or less, that the student be given oral or written notice

of the charges against [her] and, if [she] denies them, an

explanation of the evidence the authorities have and an oppor-

tunity to present [her] side of the story." Goss v. Lopez, 419

U.S. 565, 585 (1975). Here, these requirements were satisfied.

Vice Principal Harden called Kowalski into her office,

informed her of the harassment and bullying charge, dis-

cussed the "S.A.S.H." group with her, and, after Kowalski

KOWALSKI v. BERKELEY COUNTY SCHOOLS 19

acknowledged her role, imposed a 10-day suspension.

Because Kowalski admitted her conduct, the administrators

were not required to provide a more extensive opportunity to

allow her to justify her conduct.

Kowalski’s argument that school administrators did not fol-

low their own policies was not demonstrated in the record and

also has no legal merit. Violations of state laws or school pro-

cedures "are insufficient by themselves to implicate the inter-

ests that trigger a [federal] due process claim." Wofford v.

Evans, 390 F.3d 318, 325 (4th Cir. 2004); Weller v. Dept. of

Soc. Servs., 901 F.2d 387, 392 (4th Cir. 1990).

IV

Finally, Kowalski challenges the district court’s dismissal

of her claim for intentional or negligent infliction of emo-

tional distress. The district court observed that the claim for

negligent infliction of emotional distress had no merit because

the defendants’ conduct did not endanger Kowalski’s safety

or cause her to fear for her safety, as required by West Vir-

ginia law. Brown v. City of Fairmont, 655 S.E.2d 563, 569

(W. Va. 2007). The court also concluded that the defendants’

actions could not be characterized as "extreme and outra-

geous," as required under Brown, id. at 569. Finding no error

in the court’s analysis of these claims, we affirm the district

court’s dismissal of them.

V

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. The webpage called on classmates,

in a pack, to target Shay N., knowing that it would be hurtful

and damaging to her ability to sit with other students in class

at Musselman High School and have a suitable learning expe-

rience. While each student in the "S.A.S.H." group might later

attempt to minimize his or her role, at bottom, the conduct

20 KOWALSKI v. BERKELEY COUNTY SCHOOLS

was indisputably harassing and bullying, in violation of Mus-

selman High School’s regulations prohibiting such conduct.

Kowalski asserts that the protections of free speech and due

process somehow insulate her activities from school disci-

pline because her activity was not sufficiently school-related

to be subject to school discipline. Yet, every aspect of the

webpage’s design and implementation was school-related.

Kowalski designed the website for "students," perhaps even

against Shay N.; she sent it to students inviting them to join;

and those who joined were mostly students, with Kowalski

encouraging the commentary. The victim understood the

attack as school-related, filing her complaint with school

authorities. Ray Parsons, who provided the vulgar and lewd—

indeed, defamatory—photographs understood that the object

of the attack was Shay N., and he participated from a school

computer during class, to the cheering of Kowalski and her

fellow classmates, whom she invited to the affair.

Rather than respond constructively to the school’s efforts to

bring order and provide a lesson following the incident, Kow-

alski has rejected those efforts and sued school authorities for

damages and other relief. 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 in

order to preserve an appropriate pedagogical environment.

Indeed, school administrators are becoming increasingly

alarmed by the phenomenon, and the events in this case are

but one example of such bullying and school administrators’

efforts to contain it. Suffice it to hold here that, where such

speech has a sufficient nexus with the school, the Constitution

is not written to hinder school administrators’ good faith

efforts to address the problem.

The judgment of the district court is

AFFIRMED.