Courts uphold expulsions for threats


Courts rule school can punish for material produced at home that is brought to school





An Arkansas boy who penned an angry letter to his ex-girlfriend and a Pennsylvania boy who produced a Web site criticizing teachers were expelled because school officials claimed the material was threatening. In court, the schools argued they had the authority to do so because the material was viewed on school grounds.

Although for separate reasons, both a federal appeals court and a state supreme court upheld the expulsions in their opinions, coincidentally both handed down on Sept. 25.

A Northwood Junior High School student in Arkansas claims he never intended to deliver an angry letter he wrote to his former girlfriend over the summer of 2000. But a friend stole the letter from his home and brought it to school to show to the ex-girlfriend.

Fourteen-year-old Josh Mahan was expelled after the girlfriend showed the letter to school authorities. His parents then sued the Pulaski County School District saying their son's First Amendment rights had been violated.

The school district's handbook for Student Conduct and Discipline prohibits students from making terrorizing threats against others and requires that violators be recommended for expulsion.

The U.S. Court of Appeals for the Eighth Circuit voted 6-4 to uphold the expulsion.

The majority opinion, written by Circuit Judge David Hansen, said that once a threatening thought or idea is communicated, it is the government's responsibility to alleviate the threatened person's fear. The court said Mahan is accountable because a reasonable recipient would have viewed the letter as a threat.

In his opinion on behalf of the four dissenting judges, Gerald Heaney called the majority opinion 'misguided.'

'Although a reasonable person would naturally be shocked by the contents of the letter, it is unreasonable for [Mahan's ex-girlfriend] to have concluded that her life was in danger.'

Judge Theodore McMillian questioned the school's authority over something a student writes in his or her own home.

'If anything, [the letter] was arguably a police matter, for which, I note, the local prosecuting attorney refused to issue any charges,' said McMillian.

Rita Sklar, executive director of the Arkansas ACLU, said the organization has decided not to petition to have the case heard by the U.S. Supreme Court.

Meanwhile in Pennsylvania, the state supreme court upheld the expulsion of a Nitschmann Middle School student because he accessed his Web site, Teachersux.com, while at school.

Bethlehem Area School District administrators discovered Justin Swidler's Web site in May 1998. Much of its content was aimed at math teacher Kathleen Fulmer, including a list of reasons she should be fired, a solicitation of funds to 'pay a hit man' to kill her, and a photograph of Fulmer's head 'morphing into [Adolph] Hitler.'

The school district argued that Swidler's Web site caused material disruption at the school, and the high court agreed. According to the standard established in 1969's 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.

The school district's evidence included Fulmer's request of a medical leave of absence for the next school year and an adverse effect on students, some of whom sought counseling.

The court acknowledged a lack of precedent in cases involving students' Web sites, but noted that more and more students have access to the Internet on and off school grounds.

'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,' Justice Ralph Cappy wrote in the majority opinion. Because Swidler accessed the site at school, it was within the school's authority to punish him, the court said.

The court dismissed the school district's argument that Swidler's Web site caused a true threat to targeted individuals.

In an individual concurring opinion, Chief Justice Stephen Zappala said the expulsion should indeed be upheld because the Web site did present a true threat to Fulmer and not because it caused a material disruption under the Tinker standard.

Zappala said the majority 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.

The office of Swidler's attorney said they do not plan to take the case any further.

Sklar of the Arkansas ACLU said she sees courts trying to give more authority to schools to punish students for actions taken off campus.

'It's usurping the role of the parent, and I think schools are taking on more authority over a student's private life than they were ever intended to have,' said Sklar, a mother of one school-age child.

'It's a very disturbing trend, both as a civil libertarian and as a parent,' Sklar said.


Doe v. Pulaski County Special School District, 306 F.3d 616 (8th Cir. 2002)

J.S. v. Bethlehem Area School District, 807 A.2d 847 (Pa. 2002)


reports, Winter 2002-03