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A student who created a Web site where he said why one of his teachers should die and said derogatory things about his principal did not have his constitutional rights violated when he was permanently expelled from his local school district, a split Pennsylvania Commonwealth Court has ruled. The court, with one judge dissenting, said that even though the student created the Web site on his own time, it caused a disruption to the educational process at the middle school the boy attended. “Regrettably, in this day and age where school violence is becoming more commonplace, school officials are justified in taking very seriously threats against faculty and other students,” Judge Jess S. Juliante wrote for the majority in J.S. v. Bethlehem Area School District. “We emphatically reject appellant’s attempt to dismiss the reactions of the targeted faculty members as subjective,” Juliante wrote. “Given the contents of student’s Web site and the effect it had upon [the principal, the teacher] and the school community, we conclude that the trial court properly determined that the school district did not violate the student’s rights under the First Amendment.” Judge Jim Flaherty joined Juliante in the majority decision. Judge Rochelle S. Friedman filed a separate dissenting opinion where she said she would have reversed the lower court’s decision because the evidence led her to believe that the Web site did not constitute a serious threat. “In cases such as this, we must strike a delicate balance between recognition of the dangers that, unfortunately, exist in our schools today and the reality that children, no matter how sophisticated their knowledge may be, are nevertheless children, immature and naive,” Friedman wrote in her seven-page dissent. ‘TEACHER SUX’ In May 1998, J.S., an eighth grade student at Nitschmann Middle School in the Bethlehem Area School District, designed a Web site from his home computer titled “Teacher Sux.” The site consisted of several Web pages targeting an algebra teacher at the school, Mrs. Fulmer, and the school’s principal, Mr. Kartsotis. Before one entered the site, a visitor had to click on a disclaimer that he or she was not a member of the school district’s faculty and would not disclose the identity of the site’s creator. The Web site contained a list of reasons “Why Fulmer Should be Fired,” including reasons “She shows off her fat f—ing legs” and “She’s a bitch.” Another page regarding Fulmer asked “Why Should She Die?” The student then asked visitors to contribute $20 to help “pay for a hitman.” The site also contained a picture of Fulmer with her head cut off and blood dripping from her neck and a picture of Fulmer’s face “morphing into [Adolf] Hitler.” One of the teacher’s at the school received an anonymous e-mail alerting the instructor to the site. The teacher then notified the principal who then looked at the site. Kartsotis called a faculty meeting and then notified the police and Federal Bureau of Investigation. Both the police and FBI began an investigation, identified J.S. as the Web designer and ultimately decided not to file any charges. J.S. attended classes during the investigation and continued to participate in extra-curricular activities. After school officials became aware of the site, J.S. voluntarily deleted the site. J.S. was notified on July 30, 1998, that he’d be suspended for three days, which was extended to 10 days. The school district then held expulsion hearings on Aug. 19 and Aug. 26. At this point, J.S.’s parents had enrolled him in an out-of-state school for the 1998-99 school year, making him unable to attend the Aug. 26 hearing. In its findings of fact, the school district said that there was no password required to access the Web site. The school district also indicated that Fulmer suffered emotional stress from viewing the site, had to take Zanac as an anti-anxiety/anti-depressant and did not return to school in 1998. She also applied for a medical sabbatical for the 1998-1999 school year. Also, the Web site had a “demoralizing impact on the school community,” and because substitute teachers had to be brought in, there was a disruption to the educational process, the school district found. After the hearings, the school district chose to permanently expel J.S. The boy and his parents appealed to the Northampton County trial court, which affirmed the school district’s decision. The student and his parents appealed to the Commonwealth Court. STUDENT’S RIGHTS On appeal to the middle appeals court, J.S. through his parents, argued that the student’s constitutional rights were violated, that the school district committed errors of law and that the findings were not supported by the evidence on record. Before setting forth its analysis, the court noted that there is little case law addressing whether speech communicated via the Internet and off school grounds is protected by the First Amendment. One case the court cited — Fenton v. Stear — dealt with a case involving a student who sued a school district for suspending him after the student called a teacher a “prick” off school grounds. The Western District Court of Pennsylvania ruled that the student’s rights were not violated because the First Amendment “does not protect ‘fighting’ words.” The court dismissed the student’s complaints. And in Beussink by and through Beussink v. Woodland R-IV Sch. Dist., the Eastern District of Missouri had to decide whether a student could be disciplined for speech that the student put on the Internet criticizing the school administration, teacher and the principal. Beussink created the Web site at home and was suspended for 10 days as punishment for the site. Under school policy, the days the student missed would have caused him to fail all his classes. The student filed a preliminary injunction, and the court ultimately found that the student was not disciplined because the published material caused an interference with school but rather because the principal was angered by the content. “Thus, from the cases noted above, it is evident that the courts have allowed school officials to discipline students for conduct occurring off of school premises where it is established that the conduct materially and substantially interferes with the educational process,” Juliante wrote. “Appellants maintain that presently, there was no interference with the educational process since the only disruption that occurred was when Mr. Kartsotis informed the faculty that there was a problem and did not disclose the nature of it,” Juliante wrote. “Thus, appellants maintain that Mr. Kartsotis’ actions cause speculation and rumor and that any such disturbance did not result from the Web site itself. We disagree.” The court said looking at the lower court’s record the evidence of how the Web site effected Fulmer was “most damaging.” The court said that the teacher’s testimony showed that she was physically and emotionally damaged by the content of the Web site and the information had a negative effect on students’ perceptions of her and the principal. The appeals court also ruled that J.S.’s rights to due process and equal protection were not violated. The majority said the trial court was right to uphold the school district’s policy against harassment and that J.S.’s Web site “materially disrupted the learning environment.” The court also found no errors of law in the lower court’s decision. “To reiterate, courts recognize the authority of school officials to discipline students for off-campus activity where that activity materially and substantially interferes with the education process,” Juliante wrote. Juliante said it was “incredulous” for J.S. and his parents to think that the Web site’s representations were not disrespectful. “Student morphed her likeness into one of [Adolf] Hitler, called her a ‘fat bitch,’ and showed a picture of her severed head dripping with blood,” Juliante said. “Student also accused Mr. Kartsotis of engaging in an extra-marital affair. Student solicited money for a hit man, and whether or not it was mere hyperbole, he crossed the line of conduct that we, as a society, find acceptable.” The court also said that the fact that the police and FBI chose not to pursue the matter was of “no significance” to their decision. DISSENT In her dissent, Friedman said the record shows that the school district did not treat the J.S.’s Web site as a “true threat,” and she would therefore reverse the trial court’s decision. She cited Watts v. U.S. where the U.S. Supreme Court ruled only ‘true threats’ fall outside the protection of the First Amendment. Friedman said after the school district found out the identity of the individual who created the Web site, they did not immediately take disciplinary action, therefore they must not have seen the cite as a “true threat.” “If the school district here believed that any teacher, administrator or student was endangered by student’s action, the school district clearly shirked its responsibility by not suspending student immediately, investigating the incident fully and requiring student’s psychological evaluation before readmission,” Friedman wrote. “Delegating the investigation to criminal prosecutors while permitting student to remain on school premises, to interact with other students and faculty and to engage in school sponsored activities is inconsistent with the severe sanction subsequently imposed on student.” Easton attorney Robert E. Sletvold represented J.S. and his parents and said he has to discuss the decision with his clients who will then decide whether to appeal the case.

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