JS v. Bethlehem Area School Dist.

Citation569 Pa. 638,807 A.2d 847
PartiesJ.S., a Minor By and Through his parents and natural guardian H.S. and I.S., Appellants v. BETHLEHEM AREA SCHOOL DISTRICT, Appellee.
Decision Date25 September 2002
CourtUnited States State Supreme Court of Pennsylvania

Robert Einar Sletvold, Philip D. Lauer, Easton, for appellant, J.S., a minor.

Jason R. Wiley, Jeffrey T. Tucker, New Britain, for appellee, Bethlehem Area School Dist.

Jeffrey D. Litts, Stuart Lee Knade, New Cumberland, for appellee amicus curiae PA School Bd. Ass'n.



Justice CAPPY.

This appeal presents our court with the difficult issue of whether a school district may, consistent with the First Amendment to the United States Constitution, discipline a student for creating at home, and posting on the Internet, a web site that, inter alia, contained derogatory, profane, offensive and threatening statements directed toward one of the student's teachers and his principal. We find that the school district did not violate the federal constitution by punishing the student for posting the web site in question. Thus, for the reasons stated below, we affirm the order of the Commonwealth Court.

In the spring of 1998, Appellant J.S. was an eighth grade student at Nitschmann Middle School, which is part of Appellee Bethlehem Area School District ("School District").1 Sometime prior to May of 1998, J.S. created a web site on his home computer and posted it on the Internet. The web site was compiled on his own time. The site was not created as part of a school project and was not sponsored by the School District. The site was entitled "Teacher Sux." It consisted of a number of web pages that made derogatory, profane, offensive and threatening comments, primarily about the student's algebra teacher, Mrs. Kathleen Fulmer and Nitschmann Middle School principal, Mr. A. Thomas Kartsotis.2 The comments took the form of written words, pictures, animation, and sound clips.

At the outset, the web site contained a disclaimer. The disclaimer stated that "[b]y clicking," i.e., entering, the site, the visitor agreed that, inter alia, the visitor would not tell any employees of the School District about the site, that the visitor was not a member of the School District's "Staff," and that the visitor would not disclose the web site to School District employees or administration, disclose the identity of the web site creator or intend to cause trouble for that individual. The disclaimer, however, did not prevent access to the web site and the site was not protected by a password. Thus, any visitor could access the site.

Within the web site were a number of web pages. As noted above, certain of the web pages made reference to Principal Kartsotis. Among other pages was a web page with the greeting "Welcome to Kartsotis Sux." Another web page indicated, in profane terms, that Mr. Kartsotis engaged in sexual relations with a Mrs. Derrico, a principal from another school, Asa Packer School.

The web site also contained web pages dedicated to Mrs. Fulmer. One page was entitled "Why Fulmer Should be Fired." This page set forth, again in degrading terms, that because of her physique and her disposition, Mrs. Fulmer should be terminated from her employment. Another animated web page contained a picture of Mrs. Fulmer with images from the cartoon "South Park" with the statement "That's right Kyle [a South Park character]. She's a bigger b_____ than your mom."3 Yet another web page morphed a picture of Mrs. Fulmer's face into that of Adolph Hitler and stated "The new Fulmer Hitler movie. The similarities astound me." Furthermore, there was a hand-drawn picture of Mrs. Fulmer in a witch's costume. There was also a page, with sound, that stated "Mrs. Fulmer Is a B____, In D Minor." Finally, along with the criticism of Mrs. Fulmer, a web page provided answers for certain math lessons.

The most striking web page regarding Mrs. Fulmer, however, was captioned, "Why Should She Die?" Immediately below this heading, the page requested the reader to "Take a look at the diagram and the reasons I gave, then give me $20 to help pay for the hitman." The diagram consisted of a photograph of Mrs. Fulmer with various physical attributes highlighted to attract the viewers' attention.4 Below the statement questioning why Mrs. Fulmer should die, the page offered "Some Words from the writer" and listed 136 times "F ___ You Mrs. Fulmer. You Are A B ____. You Are A Stupid B ____." Another page set forth a diminutive drawing of Mrs. Fulmer with her head cut off and blood dripping from her neck.

Ultimately, students, faculty and administrators of the School District viewed the web site. J.S. told other students about the web site and showed it to another student at school. Other students viewed the web site. A Nitschmann Middle School instructor learned of the web site and reported its existence to Mr. Kartsotis. Mr. Kartsotis proceeded to view portions of the web site.

Believing the threats to be serious, Mr. Kartsotis convened a faculty meeting. The members of the faculty were informed that there was a problem at the school. However, the teachers were not told of the specific nature of the situation.

Furthermore, Mr. Kartsotis contacted local police authorities as well as the Federal Bureau of Investigation. After investigation, both agencies identified J.S. as the creator of the site. However, the law enforcement agencies declined to file charges against J.S.

Also upon viewing the web site, Mr. Kartsotis, taking the threats seriously, informed Mrs. Fulmer of the existence of the site. After viewing the site, Mrs. Fulmer testified that she was frightened, fearing someone would try to kill her. Mrs. Fulmer suffered stress, anxiety, loss of appetite, loss of sleep, loss of weight, and a general sense of loss of well being as a result of viewing the web site. She suffered from short-term memory loss and an inability to go out of the house and mingle with crowds. Mrs. Fulmer suffered headaches and was required to take anti-anxiety/anti-depressant medication.

Furthermore, Mrs. Fulmer was unable to return to school to finish the school year. She applied for and was granted a medical leave for the 1998-99 school year because of her inability to return to teaching. As a result of Mrs. Fulmer's inability to return to work, three substitute teachers were required to be utilized which disrupted the educational process of the students.

The web site also had a demoralizing impact on the school community. Mr. Kartsotis explained, inter alia, that the effect of the site on Nitschmann Middle School caused the school to be at a low point that was worse than anything that he had encountered in forty years of education. Furthermore, the effect on the morale of the students and staff at Nitschmann Middle School was comparable to the death of a student or staff member.

During this time, J.S. continued to attend classes and participate in extra-curricular activities, including a band trip. The School District did not request that J.S. remove the site. Evidently, J.S., on his own, removed the web site approximately one week after Mr. Kartsotis became aware of the site. Moreover, the School District took no action to confront or to punish J.S. in any manner during the remainder of the school year. Finally, the School District did not refer J.S. for any type of psychological evaluation and did not request that his parents have any such evaluation conducted.

However, after the end of the school year, on July 30, 1998, the School District sent a letter to J.S. and his parents informing them that it was aware of the web site and that it intended to suspend the student for three days. The letter asserted that J.S. violated School District policy through three Level III infractions: threat to a teacher, harassment of a teacher and principal, and disrespect to a teacher and principal, each resulting in actual harm to the health, safety and welfare of the school community. After a hearing on the suspension, the School District opted to extend the suspension to ten days, effective the beginning of the 1998-99 school year. Shortly thereafter, the School District began expulsion proceedings against the student. The expulsion hearings were conducted on August 19 and 26, 1998. However, by that time, the parents of J.S. had enrolled the student in an out-of-state school for the coming year. Thus, J.S. was unable to attend the August 26, 1998 hearing.

The School District concluded that (1) the student's statements: "Why Should [Mrs. Fulmer] Die?" and "give me $20 to help pay for the hitman" constituted a threat to a teacher and was perceived by Mrs. Fulmer and others as a threat; (2) the statements regarding Mr. Kartsotis and Mrs. Fulmer constituted harassment of a teacher and a principal; (3) the statements constituted disrespect to a teacher and principal resulting in actual harm to the health, safety, and welfare of the school community; (4) the School District Code of Conduct prohibited such student conduct and engaging in such action could result in expulsion; and (5) the statements caused an actual harm to Mrs. Fulmer, as well as to other students and teachers. As a result of these findings, the School District voted to expel J.S.

J.S., by and through his parents, appealed the School District's determination to the Court of Common Pleas of Northampton County, arguing, inter alia, that the School District violated J.S.'s First Amendment rights. The trial court affirmed. Thereafter, J.S. appealed to the Commonwealth Court. A three-member panel of the Commonwealth Court affirmed.

Specifically, a two-member majority of the court, in an opinion authored by Judge Jess S. Jiuliante, characterized the issue as whether a student may be disciplined for speech occurring off of school premises and communicated to others via the Internet. The court concluded...

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