J.S. v. Manheim Twp. Sch. Dist.

• Decision Date: 17 November 2021
• Docket Number: No. 2 MAP 2021,2 MAP 2021
• Citation: 263 A.3d 295
• Parties: J.S., a minor BY his parents, M.S. and D.S., Appellees v. MANHEIM TOWNSHIP SCHOOL DISTRICT, Appellant
• Court: Pennsylvania Supreme Court

263 A.3d 295

J.S., a minor BY his parents, M.S. and D.S., Appellees

v.MANHEIM TOWNSHIP SCHOOL DISTRICT, Appellant

No. 2 MAP 2021

Supreme Court of Pennsylvania.

Argued: May 18, 2021

Decided: November 17, 2021

Essence Kimes, Maura McInerney, Margaret McAuslan Wakelin, Esqs., Education Law Center PA, for Amicus Curiae Education Law Center.

Stuart Lee Knade, Esq., Pennsylvania School Boards Association, for Amicus Curiae Pennsylvania School Boards Association.

Sara Jeannette Rose, Esq., for Amicus Curiae ACLU-PA.

Robert M. Frankhouser Jr., Matthew Mark Hennesy, Luke Thomas Weber, Esqs., Barley Snyder LLP, for Appellant.

Loralyn McKinley, Nancy C. Ryan, Esqs., for Appellee.

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE TODD

This discretionary appeal lies at the crossroads of student free speech rights under the First Amendment and the duty of public schools to maintain a safe, effective, and efficient educational environment. Specifically, we review the determination of Appellant Manheim Township School District ("School District") that one of its students, Appellee J.S., made terroristic threats to another student through social media – outside of the school day and off school property – substantially disrupting the school environment, and leading to his expulsion. We allowed appeal to consider whether the School District denied J.S. due process during the expulsion process and to consider the proper standard by which to determine whether J.S. engaged in threatening speech unprotected under the First Amendment of the United States Constitution,¹ or created a substantial disruption of the school environment. For the reasons that follow, we determine that J.S. did not engage in unprotected speech, and did not cause a substantial disruption to the school environment. Therefore, we conclude that the School District improperly expelled J.S. and affirm the order of the Commonwealth Court.

The facts underlying this appeal are largely undisputed. At the relevant times, J.S. was a student in the School District, which is located outside of Lancaster, Pennsylvania. Over a period of 10 days, in early April 2018, J.S. and another student ("Student One") engaged in various conversations on social media, with each participant using a private cell phone in his respective home. During the conversations, the participants made fun of another classmate ("Student Two"), suggesting he looked like a school shooter. Specifically at issue, on April 10, 2018, J.S. sent Student One two "Snapchat memes."^{2 3} In one meme, J.S. and Student One joked that Student Two looked like a school shooter, ostensibly because of his long hair and penchant for wearing a "Cannibal Corpse" tee shirt. Cannibal Corpse is a musical band whose genre is death metal rock and whose songs use violent lyrics and graphic imagery drawn from horror fiction and films. See https://en.wikipedia.org/wiki/Cannibal_Corpse. Cannibal Corpse's lyrics and album artwork frequently feature transgressive and macabre imagery, including depictions of extreme violence and gore. Id .

The first meme contained a still photograph of Student Two singing into a microphone and was captioned as follows: "I'm shooting up the school this week. I can't take it anymore I'm DONE!" Administration Exhibit 1 to Expulsion Hearing, 5/3/18. At the bottom of the meme is a photo-shopped image of J.S. wearing large "Elton John" glasses, seemingly watching Student Two's performance. The response of Student One to this meme was "LOL," which means "laughing out loud."

J.S. then created a short video meme. This video meme depicted Student Two playing guitar music into a microphone and was captioned as follows: "IM READY [Student One] AND MANY MORE WILL PERISH IN THIS STORM. I WILL TRY TO TAKE [Student One] ALIVE AND TIE HIM UP AND EAT HIM." Administration Exhibit 3 to Expulsion Hearing, 5/3/18. The meme attributed the quote to Student Two, who was singing lyrics akin to those by Cannibal Corpse. Notably, the lyrics of the band's songs include references to eating children.

While the memes were originally private, Student One subsequently posted the first meme to his personal Snapchat "story," where it could be viewed by Student One's Snapchat "friends." In this way, it was available for approximately five minutes and seen by 20 to 40 other students. Student One had not shared any of the other messages between him and J.S. over the prior 10 days. Student One direct-messaged J.S., informing him that he (Student One) had posted the first meme. Once J.S. learned what Student One had done, he asked Student One to remove the meme from his Snapchat story. Student One did so, stating on his Snapchat story that it was a "[p]robable false alarm, just something [J.S.] sent me." Administration Exhibit 6 to Expulsion Hearing, 5/3/18. Student Two did not receive any of the Snapchat communications.

Another student reported the meme to his parent, who was employed by the School District. The parent did not call 911, the police, or the school administrator, but texted the meme to the School District's High School Principal. In turn, the Principal contacted the School District Assistant Superintendent and the police. In the early morning of April 11, 2018, the police arrived at J.S.’s home and interviewed both J.S. and his parents about the meme Student One had posted on his Snapchat story. The police concluded that there was no threat to school safety, that school could still be held later that day, and reported their conclusions to the School District. Nevertheless, the superintendent sent an e-mail to all parents and teachers stating that there had been a threat posted on social media, but that, after investigation, the school and campus were deemed safe.

Thereafter, the High School administration interviewed J.S. and his parents. J.S. explained that he intended his on-line conversation with Student One to be funny and to remain private. Initially, the School District suspended J.S., and conducted interviews of Student One and Student Two as part of its investigation. On April 12, 2018, the School District suspended J.S. for three days for violating the School District's policy against terroristic threats. Manheim Township School District Policy No. 218.2 ("Terroristic Threats/Acts Policy"), Administration Exhibit 4 to Expulsion Hearing, 5/3/18.⁴ The policy defines "[t]erroristic threat" as "a threat to commit violence communicated with the intent to terrorize another ... or to cause serious public inconvenience, in reckless disregard of the risk of causing such terror or inconvenience." Id. Four days later, on April 16, 2018, after the School District obtained the video meme, it increased J.S.’s suspension to 10 days for violating its policy against cyberbullying. Manheim Township School District Policy No. 249 ("Cyberbullying Policy"), Administration Exhibit 5 to Expulsion Hearing, 5/3/18. That policy states that the School District will provide "a safe, positive learning environment for district students" and that in this environment "bullying and harassment in any form is not tolerated." Id. The policy defines "[b]ullying" as an "intentional electronic, written, verbal or physical act or series of acts" "[d]irected at another student or students" that "occurs in a school setting." Id . Further, it defines the "[s]chool setting" as school grounds, school vehicles, designated bus stops, and school sponsored activities or "use of school-owned communications devices, networks or equipment." Id . No disciplinary actions were levied against Student One. The next day, the School District notified J.S. and his parents of a formal hearing to consider expelling J.S. for violating the school's terrorism and bullying policies.

On May 3, 2018, a hearing on the charges was held before three members of the school board. Prior to the hearing, J.S.’s parents attempted to obtain the presence of Student One, but the School District declined to compel his attendance, asserting that it lacked subpoena power. At the hearing, the School District introduced testimony of its attorney, over J.S.’s hearsay objection, that Student One told High School administrators that he had felt terrorized by the two memes and had publicized the "I can't take it anymore" meme to alert others to a possible threat. Student One, however, never reported any concern to his parents, police, or school administrators about the content of J.S.’s snapchats or memes. Nevertheless, based upon the two memes which J.S. sent to Student One, on May 11, 2018, the three-member committee of the school board recommended that J.S. be permanently expelled for making terroristic threats and engaging in cyber-bullying against another through social media. The school board ratified the Committee's recommendation. J.S. appealed the adjudication to the Lancaster County Court of Common Pleas, arguing that he was denied due process because he was not able to confront Student One during the hearing and that the School District's determinations were not supported by substantial evidence.

Judge Leonard G. Brown, III, in a thorough and thoughtful opinion, sustained J.S.’s appeal, concluding that J.S. was denied due process and that the School District's conclusions were not supported by substantial evidence. Specifically, with respect to J.S.’s due process challenge, the trial court explained that, although the legislature did not grant the school board subpoena power in expulsion hearings, the Department of Education granted several rights to students facing expulsion, including "the right to request that the witnesses appear in person and answer questions or be cross-examined." 22 Pa. Code. § 12.8(b)(6). Noting that the right to cross-examine under Section 12.8(b)(6) is granted specifically with respect to witnesses whose testimony, statements, and affidavits the School District relied upon to establish the offenses charged and to justify expulsion, the trial court...