A Lehigh Valley, Pa., school district did not violate a student’s constitutional right to free speech when it expelled him last year for allegedly threatening a teacher on his personal web site, a Northampton County Court judge ruled July 23.

Justin Swidler, now 15, was expelled in August 1998 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 described the site as an attempt at satirical humor, not a terrorist threat.

The long-since-dismantled web 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.”

In ruling for the district, Judge Robert E. Simpson wrote, “It is perfectly appropriate to impose sanctions to make the point to pupils that vulgar speech and lewd conduct is wholly inconsistent with the fundamental values of public school education.”

Public school students don’t have the same constitutional rights as adults in other settings, Simpson added: “The expression was not constitutionally protected because it was materially disruptive and it advocated violence against school staff.”

Dr. Howard Swidler and his wife, Ilene, sued the district last October, seeking to have the expulsion of their son overturned, reimbursement for private-school tuition, and punitive damages.

In their appeal of Justin’s explusion, the Swidlers argued that statements Justin made against his teacher did not constitute “a true threat under the circumstances or under the law.” They also said the district had no authority to punish Justin because the web site was created on his home computer, not school property.

“What he did was not good,” said Dr. 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.”

In response, Judge Simpson ruled that school officials don’t have to wait for violence to occur before taking action, and disruptive speech doesn’t have to originate in school.

“Although the web site in this case was created elsewhere, it was accessed at school during normal school hours and with school equipment,” the judge wrote. “Therefore, the speech had an effect on campus, and arguments to the contrary are without merit.”

Threats vs. criticisms

Until now, a string of high-profile lawsuits had sent the message that school districts couldn’t discipline their students for what they said on a personal web page created outside of school on a home computer.

Most recently, a federal judge ruled last 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.

The Pennsylvania ruling, however, draws a clear distinction between web site threats and speech that is vulgar or critical—and in the wake of the Littleton, Colo., school shootings in April, it comes at a time when school districts are particularly sensitive to threats of violence.

In their suit against the district, the Swidlers argued that their son’s solicitation of a hit man was “hyperbole.” But the judge pointed out that the statement appeared among images of math teacher Fulmer being decapitated and a photograph of her morphing into Hitler.

“The school district found the language transcended mere humor and held that it was threatening speech,” Simpson wrote. “We discern no error in this conclusion.” In his decision, Simpson cited a court case that ruled a school board has the right to determine inappropriate speech, not the federal courts.

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.

Bethlehem Area School District

http://www.beth.k12.pa.us