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After hearing oral arguments Monday, the Pennsylvania Supreme Court is now poised to decide whether a student had his constitutional rights violated when he was expelled for creating a Web site listing reasons why one of his teachers should die. A split Commonwealth Court said the student, J.S., was validly expelled from the Bethlehem Area School District because even though he created the Web site on his own time, the site’s content caused a disruption at the school the student attended. Much of the discussion from the lawyers and justices focused on disruption issue. Easton, Pa., attorney Robert E. Sletvold of Philip D. Lauer P.C. argued on behalf of J.S., and Jeffrey T. Tucker of Sweet Stevens Tucker & Katz argued on behalf of the school district. Last year, the teacher targeted by the Web site won $500,000 in a defamation claim against the student and his parents after a jury found that his parents were negligent in supervising him. In May 1998, when J.S. was an eighth-grade student at Nitschmann Middle School in Bethlehem, Pa., he designed a Web site from his home computer called “Teacher Sux.” The site consisted of several Web pages targeting an algebra teacher at the school, Kathleen Fulmer, and the school’s principal. The Web site contained a list of reasons “Why Fulmer Should be Fired,” including that “she shows off her fat f—ing legs” and “she’s a b—h.” 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.” J.S. attended classes during the investigation and continued to participate in extracurricular activities. After school officials became aware of the site, J.S. voluntarily removed it from the Internet. J.S. was notified on July 30, 1998, that he’d be suspended for three days, which was then extended to 10 days. The school district then held expulsion hearings on Aug. 19 and Aug. 26. At this point, his parents had enrolled him in an out-of-state school for the 1998-99 school year. The student currently attends school out-of-state. The school district also indicated that Fulmer suffered emotional stress from viewing the site, had to take anti-anxiety/anti-depressant medication 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. J.S. and his parents appealed to the Commonwealth Court, which ruled that the student’s constitutional rights were not violated by the expulsion. The state supreme court agreed to hear the case to decide the constitutional issue. Just moments after Sletvold began his argument Monday, Justice Stephen A. Zappala interrupted to ask what impact the case had on the student now. Sletvold said that even though J.S. is a senior and does not attend school in Pennsylvania, he still has a mark on his permanent record. Sletvold touched on the U.S. Supreme Court’s seminal case dealing with students’ freedom of speech — Tinker v. Des Moines Independent Community School District. Tinker, decided in 1969, dealt with students who were disciplined for wearing black arm bands to protest the Vietnam war. Tinker established that students enjoy First Amendment rights even while in school and cannot be disciplined unless their speech “disrupted” the operation of the school. “Tinker drew the line very carefully at the schoolhouse gate,” Sletvold argued. He also asserted that the student’s Web site did not cause a disruption. “Did it have the potential to do that?” Justice Ralph J. Cappy asked. Sletvold conceded that it did indeed have the potential to create a disruption. Cappy continued his line of questioning focusing on whether the school board had the right to review the Web site because it contained a threat. Sletvold agreed that the board had the right to investigate, but asserted that the school board did not have the right to sanction the student’s speech. “What good is it to review if you can’t act in a certain circumstance?” Cappy asked. Sletvold said that the Web site never constituted a “true threat” because, he said, if the school considered it a true threat the board would not have waited until August to expel J.S. Sletvold again stated that the Web site did not cause a disruption to the school. “The sanctions can only come when there is a material and substantial interference,” Sletvold said. Tucker countered that the case did involve threats and was in fact defamatory. Zappala immediately questioned Tucker why the school district was involved as the “guardian angel,” pointing out that the teacher already filed and won a defamation claim. Tucker said that the district’s duty is to protect the school’s interest. Tucker said that although the Web site was created outside of the school, J.S. showed it to another student at school and talked about it at school, effectively bringing the Web site into school. Cappy again questioned whether the school board had the right to investigate the Web site. Tucker said the board indeed had that right and said that case law “gives us the right to act.” Shannon P. Duffy contributed to this report.

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