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Due to the marvels of modern technology, courts across Pennsylvania are struggling to craft 21st-century responses to an age-old problem — the high school class clown. As two recent cases illustrate, the ease of setting up Internet Web sites and the ubiquity of e-mail have elevated sophomoric humor to new levels, leading school officials to impose discipline on students who then claimed violation of their First Amendment rights. Although the results in the two cases are different — one student’s expulsion was upheld, while the other won a reversal of his 10-day suspension — the judges seemed to share a common view that off-campus Internet humor that targets teachers is protected speech even if it is crude and lewd, but that jokers can get in trouble whenever there are any serious suggestions of violence. But even student humor with violent and grisly tones could soon win protection because the Pennsylvania Supreme Court has agreed to review the Commonwealth Court’s decision in J.S. v. Bethlehem Area School District in which a student was expelled for creating a Web site that said one of his teachers should die and asked for contributions toward hiring a “hit man.” The Web site at issue in J.S. included images of the teacher that “morphed” into Adolph Hitler and another, taken from the popular TV show “South Park,” that showed the teacher’s face on a severed head oozing blood. In both cases, the courts were forced to tackle the issue of whether school officials can impose discipline for speech that students engage in off-campus that somehow makes its way onto school grounds. In Killion v. Franklin Regional School District, U.S. District Judge Donald E. Ziegler found that school officials went too far when they suspended Zachariah Paul for 10 days after an e-mail he sent to friends was shown to the teacher who was the butt of his jokes. In the e-mail, Paul included a “Top 10″ list about the school’s athletic director that mocked the man for his physical appearance and contained jokes about the size of his genitals. But Paul insisted that he never brought a copy of the e-mail to school because he knew from previous warnings that he could face discipline. In his 34-page opinion, Judge Ziegler reviewed the history of the U.S. Supreme Court’s cases dealing with student speech, beginning with the seminal case of Tinker v. Des Moines Independent Community School District in 1969 in which students 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. But Ziegler said the high court later upheld limits on student speech in cases where a student gave an official address at a school assembly that included sexual innuendo and where a student newspaper was barred from reviewing R-rated movies. Together, Ziegler said, the two cases show that schools can “categorically prohibit” any lewd, vulgar or profane language on school property and regulate any “school-sponsored” speech for “any legitimate pedagogical concern.” Paul’s lawyers argued that since his e-mail was written off-campus, he should not be disciplined unless school officials can show he “disrupted” the school’s operation. But lawyers for the district insisted that the suspension was appropriate because the e-mail was not only disruptive, but also lewd and obscene. Ziegler sided with the student, saying “school officials’ authority over off-campus expression is much more limited than expression on school grounds.” Ziegler discussed the Commonwealth Court’s decision last year in J.S., which upholded the expulsion of a student for creating a Web site titled “Teacher Sux.” Although the court said that the speech occurred off-campus, it found that the student had nonetheless disrupted school functions because the algebra teacher who was targeted in the violent jokes or threats — depending on whether they were taken seriously — had to take a leave of absence. In the end, Ziegler found that the Tinker test applied to Paul’s case because the e-mail found its way onto campus. Applying the test, Ziegler found that “Paul’s suspension violates the First Amendment because [school officials] failed to satisfy Tinker‘s substantial disruption test.” The facts that teachers found the e-mail to be “rude,” “abusive” and “demeaning” was not enough, Ziegler said. STATE SUPREMES TO WEIGH IN Off-campus student speech could win even more protection if the Pennsylvania Supreme Court sides with the expelled student in the J.S. case. The justices have agreed to review a case in which a divided Commonwealth Court panel upheld the permanent expulsion of a student whose Internet Web site contained discussion of why one of his teachers should die and derogatory language about his principal. 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. Jiuliante wrote for the majority. “We emphatically reject appellant’s attempt to dismiss the reactions of the targeted faculty members as subjective,” Jiuliante 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.” But Judge Rochelle S. Friedman dissented, saying 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. COMMENTATORS Attorney Larry Frankel, the executive director of the American Civil Liberties Union, said he is encouraged by the Killion decision and other recent cases in which “the courts are taking a rather dim view of regulating student speech — especially if it’s not in school.” Frankel said he is glad to see Judge Ziegler continue to enforce Tinker in a case where the student’s speech was non-threatening and not disruptive. “We all just have to remember that you need a thick skin. [If you're a high school teacher,] you’re going to be criticized now and then,” Frankel said. But Frankel said that ever since the shootings at Columbine High School, there has been stricter enforcement of student speech, sometimes crossing the line. “It’s a matter of common sense. You have to decide what’s a real threat and what’s a joke. If you take absolutely every threat seriously, you’ll end up missing the serious ones because your resources will be exhausted,” Frankel said. But Stuart Knade, chief counsel to the Pennsylvania School Boards Association, said he believes the J.S. decision was correct and hopes the Supreme Court affirms it because school districts deserve more deference when there are threats to the safety of students and staff. “Columbine led to that, but I think the pendulum was already beginning to swing,” Knade said. As for Ziegler’s ruling in Killion, Knade said it “doesn’t disturb me at all,” and that he would not have advised the school district to pursue discipline in that case. But Knade said that in certain cases, off-campus humor should be disciplined because “there is a point at which ridicule is intended to cause disruption.” Like Frankel, however, Knade said that teachers and principals must simply grow a thick skin. “I tell people: ‘Kids have been saying these things about you for decades, but now [with the Internet and e-mail] it’s just a little easier to find out about it. And it’s a little tougher to wash it off the virtual bathroom wall.’ “

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