A Lehigh Valley, Penn., judge has agreed to consider a lawsuit filed last year by the family of an eighth-grader expelled from school for allegedly threatening a teacher on his personal web site. The suit highlights the balancing act schools must perform between protecting students’ rights to free speech and protecting their communities from potential violence.

Justin Swidler, now 15, was expelled in August after Bethlehem Area School District officials saw his web site, in which he allegedly asked for donations to hire a hit man to kill Nitschmann Middle School math teacher Kathleen Fulmer. Swidler’s family describes the site as an attempt at satirical humor, not a terroristic threat.

The since-dismantled site reportedly had a heading saying “Why She Should Die” above a sentence reading, “Take a look at the diagram and the reasons I give, then give me $20 to help pay a hit man.”

“What he did was not good,” said his father, Dr. Howard Swidler, an emergency-room physician. “We don’t condone that. He was punished for what he did. But this was a home issue–not a school issue.”

The lawsuit filed by Howard Swidler and his wife, Ilene, seeks to have the expulsion overturned, reimbursement for private-school tuition, and damages. A judge agreed to consider the lawsuit May 4.

“It may have been a big joke to (the teen), but the teacher felt that she was harmed by this threat,” said Jeffrey T. Tucker, a lawyer for the school district. “The intention is irrelevant. It is the effect that is important.”

Zero tolerance

The lawsuit comes at a time when school districts are particularly sensitive to threats of violence. In the wake of the Littleton, Colo., shootings, hundreds of copycat threats at schools across the country have led many districts to adopt “zero tolerance” policies toward threats–whether they are made on the internet or in person.

Bethlehem school officials maintain they acted properly last year because the teen violated the district’s code of conduct by threatening and maligning Mrs. Fulmer and principal A. Thomas Kartsotis.

But Northampton County District Attorney John Morganelli said he didn’t charge the teen with making terroristic threats because Pennsylvania law requires proof that the defendant meant to communicate the threat to the victim. He said the web site had a message warning employees of the school district not to enter it.

A string of high-profile lawsuits during the past year has sent the message that school districts can’t discipline their students for what they say on a personal web page created outside of school on a home computer. Most recently, a federal judge ruled in December that Woodland School District in Marble Hill, Mo., violated a student’s free speech rights when it suspended him for criticizing teachers and using profanity on his web site.

Direct threats are another matter, since they aren’t protected under the First Amendment. But proving that Swidler had intent to carry out the threats could be difficult for Bethlehem officials.

Howard Swidler said his son had the web site up for six weeks before school officials found out about it. When he learned they had, the father said, the teen took down the site.

“My son was a model student before this,” the father said. “He was an honors student, on the math team, and in the band. There were no disciplinary problems, and he got straight A’s in the third marking period.”

The father and family lawyer Robert E. Sletvold both said it is unfair to link the teen to the massacre in Littleton. Sletvold said the teen’s web page had none of “the dark and sinister” elements said to be on gunman Eric Harris’ web page.

Paul Houston, executive director of the American Association of School Administrators, said the internet is creating new questions in terms of a school district’s limits to intervene in cases where there may be the threat of violence.

“If they’re going to err, schools should err on the side of being overly cautious,” Houston said. But he also recommended that districts turn internet threats over to local police as a matter for them to handle, rather than taking it upon themselves to discipline students.

In response to the Bethlehem case, the Pennsylvania state Senate voted in March to broaden the state’s laws against threats and harassment to include those made over the internet. At press time, the legislation was pending in the state House of Representatives.

Bethlehem Area School District