J.S. Ex Rel. H.S. v. Bethlehem Area School District

FRIEDMAN, Judge,

dissenting.

I respectfully dissent. The majority concludes that the web site created by J.S. (Student) did not have First Amendment protection because Mrs. Fulmer reasonably perceived it as a threat, suffering physically and emotionally from it and being unable to continue teaching. 1 (Majority op. at 421-22.) However, the record shows that the Bethlehem Area School District (School District) did not perceive Student’s web site as a “true threat.” See Watts v. United States, 394 U.S. 705, 708 , 89 S.Ct. 1399 , 22 L.Ed.2d 664 (1969) (stating that only “true threats” fall outside the protection of the First Amendment). Moreover, I believe that the proper test for determining whether Student’s web site constitutes a “true threat” is whether a reasonable person in Student’s position would foresee that viewers of the web site would interpret it as a serious expression of intent to harm. See Lovell By and Through Lovell v. Poway Unified School District, 90 F.3d 367 (9th Cir.1996). Because the School District did not perceive Student’s web site as a threat and because a reasonable eighth grader would not necessarily foresee that the web site, with its disclaimer, would be interpreted as a serious expression of intent to harm, I would reverse.

I.

Although the majority concludes that Mrs. Fulmer reasonably perceived Student’s web site as a threat, (majority op. at 421), the record shows clearly that, when the School District discovered the web site, the School District did not consider it to be a “true threat.”

On May 12, 1998, after being informed by a teacher of the existence of the web site, the principal viewed the web site and notified the School District superintendent, the school’s technology specialist and the computer network manager. (R.R. at *427 279a-80a.) On that same day, Ms. Jill Moran, the school computer specialist, identified the owner of the web site as “juswid” and informed the principal of such. (R.R. at 439a-40a; Exhibit 2.) Also, the principal notified Mrs. Fulmer of the existence of the web site, (R.R. at 281a, 870a), and Mrs. Fulmer viewed the web site from her home that evening. (R.R. at 391a.) As soon as she saw the name “jus-wid” on the web site on that date, Mrs. Fulmer believed that Student was responsible for the site. (R.R. at 410a.) On May 13, 1998, the principal and his staff investigated the creation of the web site by questioning seventeen students, who consistently identified Student as the creator of the site. (R.R. at 241a, 243a, 320a.)

Thus, almost immediately, the School District knew that Student was responsible for the web site. Yet, the School District took no action to have Student remove the web site; Student, acting on his own volition, deleted the web site a few days later on May 16, 1998. (R.R. at 134a, 143a, 329a.) In addition, the School District never inquired of any students if they had sent Student any money for a “hit man,” with Mrs. Fulmer as the target, and never asked Student if he had collected money from anyone. (R.R. at 260a.) Further, the School District took absolutely no action to suspend Student, or to sanction Student in any way, for the rest of the school year. 2 It is apparent that the School District did not think it was reasonable for anyone to take seriously the “hit man” portion of the web site.

The School District did not decide to charge Student with any offense until July of 1998, and it was not until August 5, 1998, that anyone from the School District notified Student’s parents about the web site. (R.R. at 25a, 26a, 303a, 304a, 317a.) The School District did not even attempt to separate Student from the faculty or other students, or even to warn members of the faculty 3 or the parents of other students that Student might be unstable or a risk to the school community. 4 In fact, on May 16 and 17, 1998, the School District permitted Student to participate in a school-sponsored weekend band trip where he shared a room with another student. (R.R. at 281a.) The principal explained that he was not about to violate Student’s due process “for not a good reason.” (R.R. at 286a.) Certainly, then, the School District did not think there was “good reason” to consider Student a “true threat” to the school community.

The majority indicates that the School District took no action against Student until August because the School District turned the matter over to the local authorities and the FBI. (Majority op. at 423.) However, when the local authorities and the FBI completed their investigations, they decided not to initiate criminal proceedings against Student. The majority states that this decision not to prosecute *428 “is of no significance.” (Majority op. at 425.) I disagree.

The School District obviously believed that Student might have committed a crime when it placed the matter in the hands of the local authorities and the FBI. When those entities decided to take no action against Student, the School District could no longer delegate, or abrogate, its own authority. Indeed, when the local authorities and the FBI decided not to prosecute Student, the School District expelled Student for violating the school’s code of conduct. However, the School District did not have to wait for the local authorities and the FBI to complete their investigations before acting pursuant to the school’s code of conduct. Because the School District could have acted and did not do so, the School District must not have perceived Student’s web site as a “true threat.”

II.

In determining whether particular speech constitutes a “true threat,” the test is “whether a reasonable person [in the speaker’s position] would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.” Lovell, 90 F.3d at 372 . Although the majority does not apply this test here, I believe it is necessary to do so.

Student, an eighth grader, did not intend to communicate the alleged threats to the School District’s teachers or administrators. Indeed, before entering Student’s web site, a visitor had to agree to a disclaimer which stated that the visitor was not a member of the School District’s faculty or administration. 5 (See majority op. at 415.) Those who did visit the web site had the following reactions: “[M]akes me crack up every time I read it” and “Go here anytime you need a good laugh.” 6 (R.R. at 117a.) There is no evidence that this audience was not the intended audience for Student’s web site. 7 Thus, the intended recipients of the alleged threat did not consider it to be “a serious expression of intent to harm.” See Lovell. 8

In cases such as this, we must strike a delicate balance between recognition of the dangers that, unfortunately, exist in our schools today and the reality that children, no matter how sophisticated their knowledge may be, are nevertheless children, immature and naive. In doing so, we cannot ignore the particular circumstances presented by a specific case. If the School District here believed that any teacher, administrator or student was endangered by Student’s action, the School District clearly shirked its responsibility by not suspending Student immediately, investigating the incident fully and requiring Stu *429 dent’s psychological evaluation before readmission. Delegating the investigation to criminal prosecutors while permitting Student 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 Student. This is particularly true when, without any invitation on the part of the School District, Student removed the offending web site once he became aware of the disturbance caused as a result of its dissemination by school officials. Under these circumstances, I would conclude that the School District abused its discretion in deciding to expel Student permanently, and, accordingly, I would reverse.

. Because of Mrs. Fulmer’s reaction, the majority concluded that the web site materially and substantially interfered with the educational process at the Bethlehem Area School District. (Majority op. at 421.) Although the content of the web site affected Mrs. Fulmer personally, there is no evidence that the web site “materially disrupt[ed] classwork or involve[d] substantial disorder” so as to place it outside the protections of the First Amendment. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503 , 89 S.Ct. 733 , 21 L.Ed.2d 731 (1969).

.Compare Emmett v. Kent School District No. 415, 92 F.Supp.2d 1088 (W.D.Wash.2000), where the school district, upon learning of a student’s creation of a web site posting mock "obituaries” of fellow students and which allowed visitors to the site to vote on who would "die” next, immediately placed the student on emergency expulsion. Following an investigation, the school modified the expulsion to a five-day suspension. The federal district court ruled that the student demonstrated a substantial likelihood of success on the merits that even the five-day suspension violated his First Amendment rights because the web site was entirely outside of the school’s supervision or control and the school district did not show that the student, in posting the web site, intended to threaten anyone, did actually • threaten anyone, or manifested any violent tendencies whatsoever. Emmett .

. Although the principal warned the faculty that they should be cautious, the principal did not give the faculty any particulars as to how they should be cautious or of whom they should be cautious.

. The School District did not refer Student for a psychological evaluation or ask Student’s parents to have Student evaluated by a psychologist to determine whether Student might be a risk to the safety of others. (R.R. at 283a, 308a-10a.)

.The majority indicates that anyone could have accessed Student’s web site and that anyone “could have stumbled upon” it. (Majority op. at 425-26.) However, Mrs. Fulmer would not have known about Student's web site if someone had not informed a teacher about it. It is obvious to me from the disclaimer that Student never intended for Mrs. Fulmer to view the web site and to be physically and emotionally harmed by it. I do not condone what Student did here, nor do I disagree with the School District informing Mrs. Fulmer of the web site, but it is important to note that it was the School District, not Student, who intended and, in fact, did, communicate the existence of the web site to Mrs. Fulmer.

. This type of sick humor can be found in some of today’s popular television programs, such as South Park.

. We note that none of the seventeen students interviewed by the principal and his staff indicated that Student intended to harm anyone. (R.R. at 321a.)

. In determining whether the alleged threat constituted a “true threat” it was incumbent upon the- School District to consider the "entire factual context, including the surrounding events and the reaction of the listeners.” Lovell, 90 F.3d at 372 . Because I do not believe that Student’s web site constituted a "true threat” under the circumstances here, I do not believe it could serve as the basis for Student's permanent expulsion.