The Supreme Court appears to be showing initial interest in Kowalski v. Berkeley County Schools, one of a slew of off-campus speech cases awaiting its consideration.
The court requested a response Monday from the West Virginia school district to the certiorari petition filed on behalf of Kara Kowalski, the court docket shows.
Kowalski, a former Musselman High School student, was suspended in 2005 for creating a MySpace group that school officials claimed was intended to ridicule another student.
The title of the webpage was “S.A.S.H.,” which Kowalski said was an acronym for “Students Against Sluts Herpes.” But posts by other students on the page quickly devolved into disparaging comments about a specific classmate.
The 4th U.S. Circuit Court of Appeals ruled in July that Kowalski’s speech was disruptive to the high school’s operation, and thus administrators had the right to punish her for it under the Tinker standard even though the speech occurred off campus.
Adam Charnes, an attorney for Kowalski, said he thinks the request for response shows promise that the court will take up the case.
The district’s response is due by Dec.14. The deadline for responses in two other online speech disputes — J.S. v. Blue Mountain School District and Layshock v. Hermitage School District — is two days later.
Both cases involve Pennsylvania students who created fake online profiles to mock their high school principals, and they are being appealed together.
The high court denied in October a certiorari petition in a similar off-campus expression case, Doninger v. Niehoff. In that case, Avery Doninger, a high school junior in Connecticut in 2007, had been disqualified from running for secretary of her senior class after she called school officials “douchebags” on her LiveJournal page.
While by no means an assurance the Court will take up the Kowalski case, Monday’s move suggests the justices want additional information before they consider it. The school district had previously elected not to file a formal response.
The timing also creates the possibility that the justices will consider all three off-campus speech petitions at a single conference early next year.
Charnes said he is confident the justices will choose to hear online speech arguments, whether in Kowalski’s case or the joint Pennsylvania petitions.