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A Pennsylvania student expelled for creating a derogatory Web site is barred from filing a civil rights suit against a school district in addition to his constitutional challenge of the expulsion because of the rule of res judicata, a divided Commonwealth Court has ruled. The court, led by Judge Jess S. Jiuliante, in J.S. v. Bethlehem Area School District said J.S. and his parents were “granted a full and fair opportunity to litigate the alleged violations of student’s constitutional rights in the prior proceeding.” Judge Doris A. Smith-Ribner joined Jiuliante in the majority. Judge Rochelle S. Friedman filed a separate, dissenting opinion, asserting that she did not agree with the majority’s precedent-setting analysis of applying the principles of res judicata or collateral estoppel to a local school board expulsion proceeding. Friedman said the issue was one of first impression in the commonwealth. The constitutional challenge to J.S.’ expulsion is pending before the state supreme court, the justices having heard oral arguments in October. A split Commonwealth Court in the first J.S. case said the student 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. According to court records in the first case, in May 1998, when J.S. was an eighth-grade student at Nitschmann Middle School, 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 and the school’s principal. The Web site, court papers indicated, contained a list of reasons “Why [the algebra teacher] Should be Fired.” Another page regarding the teacher asked, “Why Should [the teacher] Die?” The student then asked visitors to contribute $20 to help “pay for a hitman.” The site also contained a picture of the algebra teacher with the head cut off and blood dripping from the neck, and a picture of the teacher’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 was to 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, J.S.’ parents had enrolled him in an out-of-state school for the 1998-99 school year. J.S. currently attends school out of state. After the hearings, the school district chose to permanently expel J.S. CIVIL RIGHTS SUIT In addition to the constitutional challenge to J.S.’ expulsion, he and his parents filed a civil rights suit against the school district. The Northamptom County Court of Common Pleas ultimately granted the school district’s motion for summary judgment based on the principles of res judicata. J.S. appealed to the Commonwealth Court. The court first mapped out the doctrine of res judicata, which contains the principles of technical res judicata and collateral estoppel. “Technical res judicata provides that where a final judgment on the merits exists, a future lawsuit on the same cause of action is precluded,” Jiuliante wrote. “Collateral estoppel acts to foreclose litigation in a subsequent action where issues of law or fact were actually litigated and necessary to a previous final judgment.” Jiuliante said J.S. and his parents did not argue on appeal that the elements of technical res judicata were not met nor that “any other element of collateral estoppel was lacking.” The majority indicated in a footnote that the trial court never addressed whether collateral estoppel also applied. “Appellants contend only that they were denied an opportunity to fully and fairly litigate the issues before the school board in that there was no discovery in the expulsion proceedings, the school board was not an independent fact finder, student was unable to testify on his own behalf and the school board was not a court of competent jurisdiction,” Jiuliante wrote. Under the Public School Code of 1949, a school board can expel a student after a formal hearing. Jiuliante said J.S. had a lawyer present at the hearings and the attorney had the opportunity to cross-examine witnesses. Therefore, the court said, he was allowed proper discovery under the code’s regulations. The court said J.S. was available for the first hearing but was unable to attend the second because he had been enrolled in an out-of-state school. “Appellants further complain that the school board was not a court of competent jurisdiction and that it was not an independent fact finder,” Jiuliante wrote. “The law, however, provides that where an agency is acting in a judicial capacity and resolves disputed issues of fact that the parties had an opportunity to fully litigate, the courts will not hesitate to apply preclusion principles.” The Commonwealth Court said the school board was acting in its “quasi-judicial capacity” during J.S.’ expulsion proceedings. After examining the record, the court concluded that J.S. and his parents were afforded a full and fair opportunity to litigate their constitutional claims in their appeal of the expulsion. J.S. argued, however, that an administrative agency’s determination should only preclude litigation before another administrative agency. The Commonwealth Court cited its 1993 decision in Christopher v. Council of Plymouth Tp. to rebut that argument. In Christopher, the court affirmed a common pleas court’s decision that the principle of collateral estoppel applied between an action before an administrative agency, acting in a judicial capacity, and a separate action in common pleas court. DISSENT Friedman filed a nine-page dissent in the case. She first said that, “unlike the majority, … I believe it is quite appropriate to address whether the trial court erred in granting summary judgment based solely on res judicata.” Friedman concluded that J.S. did not have a full and fair opportunity to litigate the matter before the school board. The Restatement (Second) of Judgments provides that a conclusion by an “administrative tribunal” is conclusive under res judicata if it has, in part, the following: “procedural elements as may be necessary to constitute the proceeding a sufficient means of conclusively determining the matter in question, having regard for [1] the magnitude and complexity of the matter in question, [2] the urgency with which the matter must be resolved, and [3] the opportunity of the parties to obtain evidence and formulate legal contentions.” Friedman said the case is of “the highest magnitude” because it deals with the right to free speech and affects an entire school community. As for urgency, she said the school board expulsion proceedings state that they must be “held with all reasonable speed.” Third, she said, because no pre-hearing discovery is permitted, a party doesn’t have an adequate opportunity to rebut evidence presented by the opposition. “Moreover, absent pre-hearing discovery, a party does not have a fair opportunity to rebut the evidence and argument of the opposing party,” Friedman wrote. “Considering these factors, I conclude that the final determination by the school board in this case is not conclusive under the rules of res judicata.” Friedman next said that even though she believed res judicata did not apply, since both legal proceedings involved the issue of J.S.’ First Amendment rights, she saw it necessary to conduct a collateral estoppel analysis. Friedman agreed with J.S. that he did not have a full and fair opportunity to litigate the issue in his first action. Citing Rue v. Kmart Corp., Friedman said if case law holds that collateral estoppel does not apply to an unemployment compensation proceeding, it shouldn’t apply to a school board’s expulsion proceedings. New Britain, Pa., attorneys Jason R. Wiley and Ellis H. Katz represented the school district. Easton, Pa., attorneys Philip D. Lauer and Robert E. Sletvold represented J.S.

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