Pa. court upholds student expulsion for disruptive Web site

PENNSYLVANIA — The Pennsylvania Supreme Court has ruled that Nitschmann Middle School administrators did not violate a student’s First Amendment rights in expelling him for a disruptive Web site he created on his computer at home.

The majority ruling against the student, Justin Swidler, parallels an opinion handed down the same day, Sept. 25, by a U.S. Court of Appeals for the Eighth Circuit in Arkansas. The majority in both the Pennsylvania Supreme Court and the Eighth Circuit in Little Rock said that when a student communicates something deemed materially disruptive to the school, even if it was created at home, the student can be subject to school punishment.

According to the Pennsylvania Supreme Court case, J.S. v. Bethlehem Area School District, it was Swidler’s action of accessing his Web site while at school and showing it to a friend that made him subject to expulsion. The Arkansas case involved a threatening letter written at home but later brought to school by a friend. The court ruled that the letter’s author could be expelled because the target of his threatening letter, an ex-girlfriend, read it on school grounds. The student, Josh Mahan, claims he never intended to deliver it.

Administrators at Nitschmann Middle School expelled Swindler after discovering his Web site,, in May of 1998. Since then, Swidler has settled two separate suits against him, one filed by the school principal and the other by math teacher Kathleen Fulmer. Much of the Web site’s content was aimed at Fulmer, including a list of reasons the teacher should be fired, a solicitation of funds to “pay a hitman,” and a photograph of Fulmer’s head “morphing into [Adolph] Hitler.”

Justice Ralph J. Cappy wrote the majority opinion, in which he acknowledged a lack of precedent in cases involving student-designed Web sites, but noted that more and more students have access to the Internet on and off school grounds. According the opinion, the ruling hinged on the determination of where Swidler’s communication took place.

“We hold that [when] speech that is aimed at a specific school and/or its personnel is brought onto the school campus or accessed at school by its originator, the speech will be considered on-campus speech,” said the majority. Because speech arguably took place at school, it is within the school’s authority to punish Swidler, the majority said.

The school district argued that Swidler’s Web site caused material disruption at the school, and the high court agreed. The school district’s evidence included Fulmer’s need to request a medical leave of absence for the next school year and an adverse affect on students, some of whom sought counseling.

“In sum,” said the majority, “the Web site created disorder and significantly and adversely impacted the delivery of instruction.”

The majority opinion disagreed, however, with the school district’s argument that Swidler’s Web site could be considered a “true threat” — that it was reasonable to believe that Swidler intended to actually inflict harm. This would have meant Swidler’s communication was not protected by the First Amendment. Under the Supreme Court’s 1969 ruling in Tinker v. Des Moines Independent Community School District, students can be punished for speech that is otherwise protected by the First Amendment only if administrators can show that the speech resulted in a material and substantial disruption of the school.

In an individual concurring opinion joined by Justice Russell M. Nigro, Chief Justice Stephen A. Zappala agreed the expulsion should be upheld, but for different reasons. He said Swidler’s statements on the Web site could be reasonably considered threatening and that they provided an ample basis for district officials to punish him.

Zappala said, however, that the majority’s opinion was “overly broad and unnecessary” in its definition of speech that took place on school grounds.

“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,” said Zappala.

J.S. v. Bethlehem Area School District, No. 2002 WL 31119075 (Pa. Sept. 25, 2002)Click here for related coverage.