Judge upholds expulsion of 8th grader

PENNSYLVANIA — In a departure from most court rulings concerningschools’ ability to punish students for their Web sites, a state courtruled in July that a Bethlehem school district did not violate the FirstAmendment rights of a middle school student when it expelled him for aWeb page he created at home.

Although most courts that have heard cases on this subject have sidedwith the students (see Website), the Pennsylvania Commonwealth Court found that district officialswere justified in expelling former Nitschmann Middle School student JustinSwidler because comments on his Web site could be considered threats againsta teacher at the school. J.S. v. Bethlehem Area Sch. Dist., No. 2259C.D. 1999, 2000 Pa. Commw. LEXIS 402 (Pa. Commw. Ct. 2000).

In its 2-1 decision upholding a trial court’s ruling, the court saidthat even though former Nitschmann Middle School student Justin Swidlercreated the site from home, it disrupted the educational process by makinga teacher at the school feel threatened and negatively affecting otherstudents’ perceptions of school staff.

“Regrettably, in this day and age where school violence is becomingmore commonplace, school officials are justified in taking very seriouslythreats against faculty and other students,” Judge Jess S. Jiuliante saidin the decision. “Given the contents of [Swidler’s] Web site and the effectit had upon Mr. Kartsotis, Mrs. Fulmer and the school community, we concludethat the trial court properly determined that the School District did notviolate [Swidler’s] rights under the First Amendment.”

Swidler was an eighth grader at Nitschmann when he created the Web site,titled “Teacher Sux,” from his home computer. The site contained severalpages criticizing school principal A. Thomas Kartsotis and algebra teacherKathleen Fulmer, including a list of reasons why Fulmer should be firedand a picture of her face morphing into Adolf Hitler.

The site also contained a page referring to Fulmer that asked “Why ShouldShe Die?” and solicited $20 contributions from visitors to help “pay fora hitman.”

School officials learned of the site in May 1998 and contacted localpolice authorities and the FBI. Both agencies conducted investigationsinto Swidler’s site, but declined to press charges. District officialsexpelled Swidler in August after the investigations were completed.

Swidler filed a lawsuit against the district, contending that officialsviolated his right to free speech. A county trial judge sided with theschool district in March 2000.

The Commonwealth Court agreed with the lower court, ruling that “therewas ample evidence upon which the School District could determine that[Swidler’s] Web site hindered the educational process.”

But one of the judges on the panel disagreed. In her dissenting opinion,Judge Rochelle S. Friedman said school officials were not justified inpunishing Swidler for his Web site because they did not consider his siteto be a “true threat.”

Friedman said that because school officials allowed Swidler to continueattending classes-and even go on a school-sponsored band trip where heshared a room with another student-they could not have perceived Swidleras truly threatening.

“If the School District here believed that any teacher, administratoror student was endangered by [Swidler’s] action, the School District clearlyshirked its responsibility by not suspending [Swidler] immediately, investigatingthe incident fully and requiring [Swidler’s] psychological evaluation beforereadmission,” Friedman said in her dissent. “Delegating the investigationto criminal prosecutors while permitting [Swidler] to remain on schoolpremises, to interact with other students and faculty and to engage inschool sponsored activities is inconsistent with the severe sanction subsequentlyimposed on [Swidler].”

Fulmer and Kartsotis have also filed lawsuits against Swidler for defamingthem on his Web site.