Judge upholds expulsion of 8th grader


Middle school student loses lawsuit challenging district officials' ability to punish him for personal Web site





PENNSYLVANIA -- In a departure from most court rulings concerning schools' ability to punish students for their Web sites, a state court ruled in July that a Bethlehem school district did not violate the First Amendment rights of a middle school student when it expelled him for a Web page he created at home.

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

In its 2-1 decision upholding a trial court's ruling, the court said that even though former Nitschmann Middle School student Justin Swidler created the site from home, it disrupted the educational process by making a teacher at the school feel threatened and negatively affecting other students' perceptions of school staff.

"Regrettably, in this day and age where school violence is becoming more commonplace, school officials are justified in taking very seriously threats against faculty and other students," Judge Jess S. Jiuliante said in the decision. "Given the contents of [Swidler's] Web site and the effect it had upon Mr. Kartsotis, Mrs. Fulmer and the school community, we conclude that the trial court properly determined that the School District did not violate [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 several pages criticizing school principal A. Thomas Kartsotis and algebra teacher Kathleen Fulmer, including a list of reasons why Fulmer should be fired and a picture of her face morphing into Adolf Hitler.

The site also contained a page referring to Fulmer that asked "Why Should She Die?" and solicited $20 contributions from visitors to help "pay for a hitman."

School officials learned of the site in May 1998 and contacted local police authorities and the FBI. Both agencies conducted investigations into Swidler's site, but declined to press charges. District officials expelled Swidler in August after the investigations were completed.

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

The Commonwealth Court agreed with the lower court, ruling that "there was 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 in punishing Swidler for his Web site because they did not consider his site to be a "true threat."

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

"If the School District here believed that any teacher, administrator or student was endangered by [Swidler's] action, the School District clearly shirked its responsibility by not suspending [Swidler] immediately, investigating the incident fully and requiring [Swidler's] psychological evaluation before readmission," Friedman said in her dissent. "Delegating the investigation to criminal prosecutors while permitting [Swidler] to remain on school premises, to interact with other students and faculty and to engage in school sponsored activities is inconsistent with the severe sanction subsequently imposed on [Swidler]."

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


Fall 2000, reports