In re Appeal of G.S. by and through Snyder

• Decision Date: 07 January 2022
• Docket Number: No. 869 C.D. 2020,843 C.D. 2020
• Citation: 269 A.3d 718
• Parties: APPEAL OF G.S., a Minor, BY AND THROUGH his Parents, Erin and Jason SNYDER, Appellants From the Decision by the Rose Tree Media School District, A Local Agency Appeal of G.S., a Minor, by and through his Parents, Erin and Jason Snyder From the Decision by the Rose Tree Media School District, a Local Agency Appeal of: Rose Tree Media School District
• Court: Pennsylvania Commonwealth Court

269 A.3d 718

APPEAL OF G.S., a Minor, BY AND THROUGH his Parents, Erin and Jason SNYDER, Appellants From the Decision by the Rose Tree Media School District, A Local Agency Appeal of G.S., a Minor, by and through his Parents, Erin and Jason Snyder From the Decision by the Rose Tree Media School District, a Local Agency Appeal of: Rose Tree Media School District

No. 843 C.D. 2020

No. 869 C.D. 2020

Commonwealth Court of Pennsylvania.

Argued September 22, 2021

Decided January 7, 2022

Michael D. Raffaele, Bryn Mawr, for Designated Appellants.

David W. Brown, Huntingdon Valley, for Designated Appellee Rose Tree Media School District.

BEFORE: HONORABLE P. KEVIN BROBSON, President Judge,¹ HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge,² HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE CEISLER

Currently before us are the consolidated cross-appeals of G.S., a Minor, by and through his Parents, Erin and Jason Snyder (G.S.), and the Rose Tree Media School District, A Local Agency (School District), both of which challenge the Court of Common Pleas of Delaware County's (Common Pleas) July 27, 2020 order, whereby Common Pleas partially affirmed and partially reversed the School District's decision to expel G.S. from Penncrest High School.³ This expulsion resulted from the School District's determination that G.S. had violated its Student Discipline Code by posting violent song lyrics on Snapchat,⁴ despite the fact that G.S. had put up the offending post at a time when he was neither on-campus nor involved in school activities. In doing so, the School District concluded that G.S.’ post constituted harassment, was a terroristic threat, and had disrupted the school environment. On appeal, Common Pleas held that the School District's terroristic threat determination was not supported by substantial evidence, but upheld G.S.’ expulsion on the other two bases. We conclude that the School District's decision to expel G.S. violated his constitutionally protected right to free speech. As such, we affirm Common Pleas’ order in part on alternate grounds and reverse that order in part.

I. Background

The incident that ultimately gave rise to these cross-appeals occurred when G.S. was 16 and in 11th grade at Penncrest. Reproduced Record (R.R.) at 102a-03a, 635a, 955a, 961a. On April 1, 2018, G.S. used his personal smartphone to post the following on Snapchat, where he had 60 to 65 followers, including 4 or 5 other School District students:

Everyone, I

despise everyone!

Fuck you,

eat shit,

blackout,

the world is a graveyard!

All of you, I

will fucking

kill off all of

you! This is

me, this is

my, snap!

Id. at 465a, 633a, 966a. Though G.S. did not tag his post as such, the words it contained were copied from "Snap," a song by the death metal band Spite.⁵ The only alteration G.S. made in his post to the excerpted lyrics was to add several exclamation points. Id. at 65a-66a, 601a, 604a, 640a, 827a-28a. G.S. did not direct this post toward any particular person or group and did not tag any other Snapchat users in it, nor did he put up this post at a time when he was involved in school-related activities. Rather, he posted while at an Easter Sunday celebration with his extended family in New Jersey. Id. at 28a, 124a, 176a-77a, 182a, 200a, 303a, 399a, 600a, 710a.

Once G.S. released his Snapchat post, other users took notice and independently reposted screenshots of it through different social media applications, including one who tagged their repost on Instagram with the phrase "@penncrest_students." Id. at 50a-51a, 55a-56a, 143a, 458a-61a, 952a-54a. Around 4:00 p.m. that day, a parent of another Penncrest student called the Pennsylvania State Police (PSP) barracks at Media and told a PSP trooper about G.S.’ Snapchat post. The parent then went to the barracks, showed the post to the trooper and then emailed him a screenshot. Id. at 19a-20a. The trooper visited G.S.’ residence shortly thereafter, discovered that neither he nor his parents were home, and then reached out to an assistant district attorney from the Delaware County District Attorney's Office. Id. at 21a-24a. In response, that assistant district attorney signed off on charging G.S. with the crime of terroristic threats, due to the violent sentiment contained in G.S.’ post. Id. at 24a. Just before 6:00 p.m., the trooper contacted Joseph Fuhr, Penncrest's vice principal, told Fuhr that he was preparing criminal charges against G.S., and read the contents of the post to Fuhr over the phone. Id. at 24a-26a, 101a-03a. Fuhr then notified Norman Harrison, Penncrest's principal, about the situation, who then relayed the information to James Wigo, the School District's superintendent. Id. at 105a-06a, 200a-05a, 370a-71a. At this point, neither local law enforcement nor School District officials were aware of the true provenance of G.S.’ post and, instead, were operating under the presumption that it constituted a legitimate threat of violence. See id. at 18a-27a, 103a-04a, 129a-37a.

Thereafter, the trooper called G.S.’ father and asked him to bring G.S. to the Media barracks for questioning. Id. at 28a. G.S., along with his parents, his sister, and his attorney, voluntarily appeared at 8:30 p.m. that night. Id. at 28a-29a. While under questioning from the trooper, G.S. admitted that the post was his, but said that it was just a snippet of lyrics from "Snap" and that he did not intend to harm anyone. Id. at 29a-33a. The trooper passed this information along to another assistant district attorney, who told the trooper to keep investigating G.S. and to move forward by charging G.S. with terroristic threats, as well as with harassment. Id. at 34a-36a. G.S. was then arrested, his phone was confiscated, and he was taken to a nearby juvenile detention center where he was held. Id. at 37a-41a.⁶

Throughout the day, a number of community members contacted both Harrison and Wigo, sending them screenshots of G.S.’ post and expressing fear about what it portended. Id. at 202a-03a, 248a-50a, 372a, 442a-43a. As such, Wigo concluded that G.S.’ post had become a School District-wide concern and resolved to notify the broader School District community about the situation. Id. at 372a, 422a-23a, 807a. At 9:45 p.m., Wigo issued a community-wide telephonic message stating that the School District was aware of G.S.’ post, that law enforcement was investigating the matter, and that the School District "considered [G.S.] to [have made] serious threats of violence towards others [through his post]". Id. at 372a-80a, 807a, 1001a. This was supplemented by information on the School District's main webpage and through an email to School District parents, both of which conveyed a similar sentiment to that of the telephonic message. Id. at 372a-80a, 422a-26a, 807a-08a, 1001a. These messages were based upon the information Wigo had at that time, as he did not then know that G.S. had been arrested or that the worrying post consisted entirely of song lyrics. Id. at 214a-15a, 400a, 424a, 465a-66a, 496a-97a, 508a.

The following morning witnessed a notable disruption to normal operations at Penncrest. Roughly 25 percent of the student body was absent from school on April 2, 2018, a large increase over a normal day's number. Id. at 388a-89a. Those who were present appeared to be anxious and upset, with many students and their families seeking assurances from staffers that the school was safe. Id. at 211a-13a, 381a-85a, 440a-41a. In addition, there was an increased police presence on campus. Id. at 381a-83a, 384a-87a, 808a-09a. Not helping matters was the fact that another Penncrest student had separately made additional threats on social media prior to the start of the school day. Id. at 497a-99a, 508a-09a. At approximately 9:35 a.m., Wigo issued another message to School District parents, stating that G.S. was in PSP custody and that it appeared that other students had been or could be encouraged by G.S.’ post to make threats of their own; at that time, Wigo had not seen the second student's post, but had only been told that it was of a threatening nature. Id. at 390a-92a, 437a-39a, 496a-500a, 521a-24a. In this message, Wigo stated, in part, that

[w]e no longer have the luxury of trying to discern a credible threat from one that is intended to disrupt lives. Every threat is considered to be credible. ... There is no protection and no excuse for someone who willfully uses electronic or any other media source to disrupt the emotional and physical safety of our students, their families, or our staff and their families, and we will take every action necessary to protect the good members of the educational community.

Id. at 954a.

While this was occurring, G.S. remained in custody at the juvenile detention center, where he underwent a court-ordered psychological evaluation later that day; this evaluation was given by Agnes Habony, a licensed psychologist and certified school psychologist. Id. at 955a. After meeting with G.S., Dr. Habony determined, in relevant part, that

[a]t this time, [G.S.’] profile does not present with a level of underlying anger, depression, or aggressive tendencies that have the potential to explode into an incident of crisis proportions. His [Snapchat post] is a duplication of emotionally charged lyrics found in a ... song that, while disturbing in content and audio, represent a low level of threat to the community. Specifically, [G.S.] does not have the resources, motivation, or intent to carry out the threat. [G.S.’] attraction to the song is based mostly on the rhythm, tempo, and high energy of the music. [G.S.] is remorseful for having posted the lyrics and hopes to return home as soon as possible. His level of risk for future violent behavior is [l]ow.

Id. at 959a. As such, Dr. Habony concluded that "[G.S.] is ... able to return to the community until his next court hearing" with...