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The Bethlehem Area School District did not violate a student’s First Amendment rights under the U.S. Constitution when it expelled him for creating a derogatory Web site, the Pennsylvania Supreme Court has ruled. Although the court determined that the student’s list of reasons why one of his teachers should die did not constitute a “true threat,” the high court said the school district still had the right to punish the student. The high court in J.S. v. Bethlehem Area School District, led by Justice Ralph J. Cappy, also created a standard in which speech “aimed at a specific school and/or its personnel is brought onto the school campus or accessed at school by its originator … will be considered on-campus speech.” The pronouncement from the high court is significant in today’s technologically advanced society, where it is common for school-aged children to design Web sites. Cappy also found that J.S.’s Web site created a significant enough disturbance at the school — including physical and emotional problems suffered by the targeted teacher — that the student’s expulsion was warranted punishment. “In sum, the Web site created disorder and significantly and adversely impacted the delivery of instruction,” Cappy wrote. “Indeed, it was specifically aimed at this particular school district and seemed designed to create precisely this sort of upheaval.” “Based upon these facts, we are satisfied that the school district has demonstrated that J.S.’s Web site created an actual and substantial interference with the work of the school to a magnitude that satisfies the requirements of Tinker.” The U.S. Supreme Court’s decision in Tinker v. Des Moines Independent Community School District is the seminal case dealing with students’ freedom of speech. In Tinker, 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. The U.S. high court has also upheld limits on student speech in Bethel School District No. 403 v. Fraser, where a student gave an official address at a school assembly that included sexual innuendo. 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, 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 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.” 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 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.’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. The school district also indicated that Fulmer suffered emotional stress from viewing the site, had to take Xanax as an anti-anxiety/anti-depressant medication and did not return to school in 1998. She also applied for a medical sabbatical for the 1998-99 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, which ruled that J.S.’s constitutional rights were not violated by the expulsion. Cappy said the case mandated the court to take a “cautious approach that considers and balances both the constitutional rights of the student with the preservation of order and a proper educational environment.” The First Amendment to the U.S. Constitution provides as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” On appeal to the supreme court, J.S. argued that the school district failed to meet its burden in “establishing a sufficient disruption of the school environment to limit J.S.’s off-campus speech.” J.S. also argued that the Web site did not constitute a “true threat.” The school district countered that J.S.’s expulsion did not violate the student’s constitutional rights because the Web site constituted on-campus speech that caused a material disruption at the school. The district also argued that the Web site constituted a “true threat.” The high court noted that if speech constitutes a “true threat,” it has no constitutional protection. “A true threat may be criminally punished and the majority of case law that considers whether certain speech constitutes a true threat arises in the context of a conviction for the violation of a criminal statute that prohibits such threats,” Cappy wrote. But, since J.S.’s conduct was not the basis of criminal prosecution, the court separately examined the extent of the student’s statements to determine whether they constituted a threat. The court looked to other cases dealing with a similar issue and said that a “true threat” was one in which the communication was a “serious expression of intent to inflict harm.” The high court said, looking at the totality of the circumstances, the Web site did not constitute an actual threat. “We believe that the Web site, taken as a whole, was a sophomoric, crude, highly offensive and perhaps misguided attempt at humor or parody,” Cappy said. “However, it did not reflect a serious expression of intent to inflict harm.” The court said the Web site focused predominantly on Fulmer’s physical appearance and disposition rather than an actual intent to inflict harm. Cappy noted, however, that the court’s inquiry did not stop there. After reviewing all the pertinent case law, Cappy noted that the U.S. Supreme Court has yet to decide a case with a similar fact-pattern to J.S.’s case. Cappy also said that the “advent of the Internet” has complicated legal analyses of restrictions on speech. However, he said there are certain considerations to take into account when dealing with the freedom of speech of a student’s personal expression. He said the threshold issue in such cases is determining the location of the speech, particularly whether it occurred on-campus or off-campus. Then, if the speech is deemed on-campus, Cappy said, a court must consider the form of speech, the effect of the speech, the setting in which the speech is communicated and whether the speech is part of a school-sponsored expressive activity. Turning to the threshold issue of location, the court deemed J.S.’s speech to be on-campus speech, regardless of the fact that the student designed the Web site out of school. “We find there is a sufficient nexus between the Web site and the school campus to consider the speech as occurring on-campus,” the court wrote. “While there is no dispute that the Web site was created off-campus, the record clearly reflects that the off-campus Web site was accessed by J.S. at school and was shown to a fellow student.” The court next examined the actual speech — the content of the Web site — and whether it caused a substantial disruption at school. The court sided with the school district. “The Web site posed by J.S. in this case disrupted the entire school community — teachers, students and parents,” Cappy wrote. “The most significant disruption caused by the posting of the Web site to the school environment was direct and indirect impact of the emotional and physical injuries to Mrs. Fulmer.” The court said the school environment was also adversely impacted. Cappy concluded that the disruption was substantial under the mandates of, and, therefore, J.S. was constitutionally punished. The decision affirmed the Commonwealth Court. Chief Justice Stephen A. Zappala filed a separate decision concurring in the majority’s result, which Justice Russell M. Nigro joined. Justice Ronald D. Castille also filed a separate concurring opinion. Zappala wrote separately to disagree with the majority’s conclusion that J.S.’s speech did not constitute a “true threat.” He also said the majority’s pronouncement defining on-campus speech was “overly broad” and unnecessary to the conclusion of the case. “The fact that a Web site is merely accessed at school by its originator is an insufficient basis upon which to base a characterization of the speech as on-campus speech,” Zappala wrote. In his concurrence, Castille said the true threat issue was a close call and ultimately was persuaded by the majority’s analysis. New Britain attorneys Jeffrey T. Tucker and Jason R. Wiley represented the school district. Easton attorneys Robert E. Sletvold and Philip D. Lauer represented J.S.

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