Expulsion Based on “Kill List” Reinstated

In an unpublished opinion, the Pennsylvania Commonwealth Court recently reversed a lower court’s decision and reinstated a student expulsion based on terroristic threats.

In the Fall 2009 edition of MB&M’s Education News, we highlighted the case of Shelby L. Jones v. Gateway School District, which involved an eighth grade female student who was permanently expelled from the Gateway School District after the District discovered that she had three handwritten lists, one of which was titled “People to Kill” and included the names of her teacher and six classmates while the other two lists contained different names and language but appeared to have been created for the same purpose.  The School Board permanently expelled her for violating the Code of Conduct’s prohibition against terroristic threats and for causing a substantial disruption to orderly school operations.  The student appealed her expulsion to the Court of Common Pleas which reversed the expulsion and reinstated her on the basis that the lists were not actual threats because the student kept them to herself and never acted violently or aggressively toward the individuals named on the list.  The Court found that any educational disruption was not caused by the lists themselves, but by the District’s investigative and disciplinary response to them.  The case is of significant importance to school officials who are periodically faced with deciding whether a student’s verbal or written statements constitute true threats or whether they can be punished as unprotected speech if a substantial disruption to orderly school operations occurs.  As we reported in the Fall, the School Board appealed the Court’s decision to the Commonwealth Court.

On March 26, 2010, the Commonwealth Court reversed the lower court and reinstated the student’s expulsion.  The Commonwealth Court first noted the principle that school boards have broad discretion to adopt and enforce rules regarding student conduct, which includes the authority to expel students under Section 1318 of the School Code in circumstances where the Board determines expulsion is appropriate.  Accordingly, the Court stated that the Board’s decision to expel the student would be upheld unless the Board acted in a manner that was arbitrary, capricious or prejudicial to the public interest.

In support of its decision, the Commonwealth Court cited the Pennsylvania Supreme Court decision in J.S. v. Bethlehem Area School District where the Supreme Court addressed the expulsion of an eighth grade student who created an off-school website which made derogatory and profane comments about his teacher and principal, contained an image of his teacher’s severed head changing into a picture of Adolph Hitler and listed reasons why his teacher should die.  The Supreme Court found that the statements at issue did not constitute true terroristic threats against the teacher and principal, but upheld the expulsion on the basis that orderly school operations were substantially disrupted by the website.  The teacher named in the site was disturbed and had to take a leave of absence for the remainder of the year.  Students, staff and parents were also anxious over the safety of the school environment in light of the statements made on the website.  As a result, some disorder was caused.  On these facts, the J.S. Court found that there was no violation of the student’s Fourth Amendment rights by punishing his speech, and the expulsion was upheld.

Relying on the J.S. decision, the Commonwealth Court held that the Gateway School Board relied on substantial evidence in expelling the student for disrupting the orderly operations of the school.  The Commonwealth Court referred to the testimony of the Assistant Superintendent that the student’s “Kill Lists” created a disruption because a sense of fear and anxiety was created after the District contacted the students and their families to inform them that the lists existed but were unable to confirm certain other details because of student confidentiality.  There was also a substantial disruption due to the necessary investigation, calls and letters which consumed a significant portion of the administration’s time for several days.  In the Commonwealth Court’s view, this constituted substantial evidence supporting the Board’s decision to expel the student.

The Pennsylvania Supreme Court’s decision in J.S. has been criticized by the federal judiciary in recent cases involving whether student off-campus speech—most notably in the form of fake facebook and myspace profiles of school officials—can be the subject of discipline by school districts.  However, the Commonwealth Court’s reliance on J.S. was for the principle that School Districts possess the ability and discretion to determine whether particular student speech constitutes a disruption to orderly school operations, and to take disciplinary action accordingly.

Although the Commonwealth Court’s decision is not precedential because it is unpublished it still has an important impact for your District because it signals that the appellate courts will provide deference to school boards in determining whether student speech should be punished.  Following the rationale of the Shelby Jones case, it is not necessary for a Board to find that a student’s statements constitute a true threat within the meaning of a Code of Conduct or a criminal statute if the Board is able to find substantial, credible evidence that the student’s speech disrupted school operations.