from Phi Delta Kappan May 2001, pp.717-18.
IN SPRING 1998, when he was eighth-grader at Nitschmann Middle School in Bethlehem, Pennsylvania, J.S. created a website on his home computer, on his own time. Titled "Teacher Sux," the website made derogatory comments about J.S,' algebra teacher, Kathlee n Fulmer, and about the school's principal. Thomas Kartsotis. A page on the site titled "Why Fulmer Should Be Fired" listed these reasons: "She shows off her fat fucking legs," "The fat fuck smokes," and "She's a bitch! "Related material included similar statements under the heading "Why Should She Die?"; a diagram of Fulmer with her head cut off, blood dripping from her neck, and morph- ing into Adolf Hitler; and solicitation to "give me $20.00 to help pay for the hit man." A page titled "Why Does Kartsotis Suck?" stated: "He sees Mrs. Derrico [principal of a nearby school] naked," and "He fucks Mrs. Derrico." Although not password-protected, the website contained a disclaimer that required agreeinent that the visitor was not a member of the school district's faculty or administration and that the visitor did not intend to disclose the identity of or cause trouble for the website creator.

On or about May 12, a Nitschmann teacher learned of the website through an anonymous e-mail and promptly reported it to Kartsotis. After viewing portions of the site. Kartsotis notified the superintendent and the school's technology specialist. He also convened a faculty meeting in which he announced that there was a problem in the school, but he did not disclose the nature of it. He separately informed Fulmer, who subsequently began to show stress, anxiety, and loss of well-being. She lost weight and sleep, feared going out of the house and mingling in crowds, and-despite getting a prescription for an antidepressant - was unab le to return to school at the end of the year.

On May 13, Kartsotis and his staff questioned 17 students, who pointed to J.S. as the creator of the website. Kartsotis also immediately contacted the local police and the FBI. Both agencies conducted investigations and were able to identify J.S. as the website creator.

On May 16, after learning of the school investigations. J.S. voluntarily removed the website. The website counter showed that it had been viewed approximately 234 times, and the websiie's contents revealed that other students had added their own derog atory comments.

On or about July 30, district officials sent J.S.' parents written notification of their intent to suspend him for three days based on his violation of three rules in the district's student code of conduct: threat to a teacher, harassment of a teacher and a principal, and disrespect to a teacher and a principal. After an informal hearing on the suspension, the district opted to extend the period to 10 days, effective at the beginning of the 1998-99 school year. Shortly thereafter, the district commenced expulsion proceedings.

The hearing did not start until August 19 because of the schedule of the parents' attorney. Kartsotis testified that the effect of the website was worse than anything he had encountered in his 40 years of experience. including his 15 years as Nitschmann's principal. He also testified that Fulmer's inability to return to the classroom and the consequent use of substitutes disrupted the education of her students. When the hearing ranrafher late into the evening, the school board offered to continue the but J.S.' father requested another day because he was unavailable the next day. The board scheduled the continuation for August 26, despite the parents' objection that they had enrolled their son in a private school out of state and that he would not be returning until Thanksgiving.

On August 31, after completing the hearing, the school board concluded that the statement about a "hit man" constituted a threat, the statements regarding Kartsotis and Fulmer constituted harassment of and disrespect to a teacher and a principal, and the effects on Fulmer and other members of the school community were harmful. Consequently, the board voted to permanently expel J.S.

On 1 October 1998, J-S.' parents filed suit on his behalf in state trial court, claiming that the district's decision violated his constitutional rights. On 17 August 1999, the trial court affirmed the school board's decision. Undaunted, the parents filed for appeal with the Commonwealth Court.

On 14 July 2000, the Commonwealth Court issued a 2-to-1 decision in favor of the school district. (1) As for First Amendment speech, the majority concluded I) that, in accordance with Tinker (2) and its progeny, school officials may discipline students for off-campus expressive conduct that substantially interferes with the educational process; and 2) that the effect of the website, including Fulmer's continuing medical leave and the invitation to other students for their input, constituted such interference. Regarding the website statements as reasonably perceived as disturbing, the majority commented: "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.

The court found J.S.' procedural due process arguments to be flimsy. Specifically, che court concluded that, within the received adequate discovery; 2) the parents did not have the right to postpone the hearing to "counsel-shop" for an additional, specialized attorney; 3) similarly, they had no right to a three-month postponement based on J.S,' enrollment elsewhere; and 4) the initial delay in the expulsion decision was reasonable and nonprejudicial.

Next, the majority rejected J.S.' 14th Amendment equal protection claim, agreeing with the trial court that the contents of his website "do not constitute constitutionally protected speech and are, therefore, subject to a rational basis test" and dism issing the argument of differential treatment in light of "any evidence upon which we could conclude that other students' were involved in the present situation or others like it." Finally, the court rejected the family's various other arguments, including those concerning the website disclaimer and J.S.' viewed the disclaimer as practically ineffective, because it does not limit access to Ihe site and does not forewarn the viewer of its offensive nature, and as legally ineffective, because it "does not create a contract between [J.S.] and the viewer and d oes not create any rights thereunder that could be renounced." Similarly, the court concluded Chat J.S. had no expectation of privacy once he posted the website on the Internet, at least without effective password protection.

The dissenting Judge expressed disagreement only with the majority's First Amendment analysis. Specifically, he viewed the proper test of an unprotected, true threat as "whether a reasonable per that viewers of the web site would interpret it as a serious expression of intent to harm." Applying this test, he concluded that the student's age, his disclaimer, and the responses of the other students which we re typical of young people's reactions to the "sick humor... in some of today's popular television programs, such as South Park" - preponderantly proved that J,S. did not intend Fulmer, Kartsotis, or other school staff members to even view the site - much less to see it as a serious threat to harm them. Further, the dissenting Judge pointed to the district officials' delay in charging J.S. with any offense (recall that they waited from mid-May, when they quickly found out that J.S- was responsible for the website, until late July, well after the local police and the FBI had completed their investigations and declined to initiate criminal proceedings) as confirming evidence that the district did not regard him as a true threat. Although recognizing the dangers of violence in schools, the judge suggested the need to "strike a delicate balance" with the constitutional circumstances, which included the inevitable naivete of adolescent children and the belated overreaction of school authorities.

Reporting that the family has sought review by the Pennsylvania Supreme Court, Attorney Robert Sletvold, who represented J.S. in this case, maintains that "the final chapter is not finished." Pointing out that the odds are slim that the court will take th e case and reverse the lower court. Attorney Jeffrey Tucker, who represented the school district, counters: "Via the Internet or not, students cannot threaten, defame, or harass employees under the guise of First Amendment expression, and when such conduc t is off-campus, it is subject to discipline where there is a nexus to school," In any event, this decision is another illustration of the judicial view that subordinates students' rights to school safety. Paralleling the Ninth Circuit's 1996 "true threat" case,(3) which involved an incident that took place in school, and the Se venth Circuit's 1998 "hacking article" case, which implicated the power of technology,(4) this state appeals court decision in 2000 reflects the older generation's reaction to students' sick humor on the Web. Nevertheless, depending on the facts of the case and the judges on the court, other published court decisions concerning student websites are more in line with the dissenting Judge in J.S.' case.(5)

This decision also illustrates that a single set of facts can generate more than one case. Here, in addition to this suit, J.S. filed a separate civil rights suit against the district, principal Kartsotis counter-claimed for emotional distress, and te acher Fulmer separately sued J.S. and his family for defamation, invasion of privacy, and various other common-law torts. According to a recent news article, the trial court threw out the family's second suit, the family settled the suit with Kartsotis fo r an undisclosed amount, and a jury awarded Fulmer $500,000 based on invasion of privacy and negligent supervision.(6)

Finally, this decision reveals the need for care in developing and applying policies relating to the use of the Internet.7 Given the burgeoning technology, new issues continue to arise. For example, in a that a parent has a right under the state's Righ t-to-Know Law to inspect logs of Internet sites visited via district computers as long as administrators remove any information that would identify student visitors.8

For students, parents, teachers, and administrators, the message that accompanies the litigation arising from J.S.' semiprivate expression of frustration seems to be: "The Internet can be wonderful, but beware of being caught in the Web."

1. J.S. v. Bethlehem Area Sch. Dtsl., 757 A-2d 412 (Pa. Commw. Ct, 2000). Telephone interviews in mid-January 2001 with attorneys Robert Sletvold and Jeffrey Tucker, who represented the plaintiff family and the defendant district respectively, yielded supplementary information.

2. See, for example. Perry A. Zirkel, "The 30th Anniversary of Tinker, "Phi Delta Kappan, September 199, pp. 34-40, 58

3. Lowell v. Poway Unified Sch. Dist., 90 F.3d 367 (9th Cir 1996). See Perry A. Zirkel, "A Threat to Student Speech?," Phi Delta Kappan, January 1997, pp. 413-14.

4. Boucher v. School Bd., 134 F.2d 821 (7th Cir 1998). See Perry A. Zirkel, "Hacking Around," Phi Delta Kappan, March 1999, pp. 550-51.

5. See, for example, Emmett v. Kent Sch. Dist. No. 415, 92 F Supp. 2d 1175 (E.D. Mo. 1998)

6. Kevin Penton, "Ex-Principal, Swidlers Settle Suit over Threats," Allentown Morning Call, 20 December 2000, p. B-5. For a separate recent example of an educator suing a student for emotional harm, see Nims v Harrison, 768 So.2d 1198 (Fla. Ct. App. 2000) (teacher stated cognizable claim for intentional infliction of emotional distress based on student's outrageous publication).

7. For a comprehensive treatment, see Kathleen Conn and Perry A. Zirkel, "Legal Aspects of Internet and Use in K-12 Schools," West's Education law Reporter, vol. 146, 2000, pp. 1-34.

8. Mark walsh, "Schools Must Reveal Internet Logs, Judge Says," Education Week, 22 November 2000, p.5.