First Amendment: Threatening Speech; Due Process in Public School Student Disciplinary Proceeding

J.S. v. Manheim Township School District, 231 A.3d 1044 (Pa. Cmwlth. 2020), allocatur granted Jan. 20, 2021, appeal docket 2 MAP 2021

In this case, the Pennsylvania Supreme Court will consider a student’s due process right to cross examine witnesses at a public school student disciplinary hearing and the standard applicable to determining whether speech constitutes a “true threat.”

Manheim Township School District expelled J.S., a student at Manheim Township High School, for two memes he sent to another student (Student One) via Snapchat, a social media platform. The memes were sent as part of an extended conversation over a period of 10 days, which took place after school, with J.S. and Student One using a private cell phone in his respective home. Over the course of the conversation,  J.S. and Student One made fun of a classmate (Student Two), joking that Student Two looked like a school shooter because of his long hair and preference for wearing a “Cannibal Corpse” (a hard metal rock group that uses violent lyrics and graphic imagery drawn from horror fiction and films) tee shirt. At one point, J.S. sent Student One a still photograph of Student Two singing into a microphone with the caption: “I’m shooting up the school this week. I can’t take it anymore I’m DONE!” and a photo-shopped image of J.S. wearing large “Elton John” glasses, apparently watching Student Two’s performance. J.S. then sent Student One a short video meme depicting Student Two playing guitar music into a microphone, captioned with: “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.” The quote was attributed to Student Two, who was singing lyrics by Cannibal Corpse. Commonwealth Court summarized the events that followed:

Student One then posted the “I can’t take it anymore” meme to his personal Snapchat “story,” where it could be viewed by Student One’s Snapchat “friends.” It was available for approximately five minutes and seen by 20 to 40 other students. One student reported the meme to his parent, who reported the meme to the High School Principal. In turn, the Principal contacted the School District Superintendent and the police.

Student One had not shared any of the other messages between him and J.S. over the prior 10 days. When 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 it was a “[p]robable false alarm, just something [J.S.] sent me.”

In the early morning of April 11, 2018, the police arrived at the home of J.S. and interviewed both J.S. and his parents about the meme Student One had posted on his Snapchat story. The police concluded that J.S. had not made a threat and that there was no threat to school safety and so reported to the School District. Nevertheless, the High School sent an e-mail to all parents stating that there had been a threat. The press then reported that a High School student had been suspended for posting a threat on social media. However, it was not J.S., but, rather, Student One who had posted the meme and made it public.

The High School administration continued to interview J.S., who explained that he intended his on-line conversation with Student One to be funny and to remain private. On April 12, 2018, the School District suspended J.S. for three days for making a terroristic threat and for causing serious inconvenience to the school. When the High School later obtained the video meme, it suspended J.S. for seven more days.

On April 12, 2018, the School District formally charged J.S. with violating the School District’s policy against terroristic threats (Board Policy No. 218.2). The policy defines “terroristic threat” as “a threat to commit violence communicated with the intent to terrorize another….”. On April 16, 2018, the School District formally charged J.S. with violating its policy against cyberbullying (Board Policy No. 249). 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.” The policy defines “bullying” as an “intentional electronic, written, verbal or physical act or series of acts directed at another student” that “occurs in a school setting.” It defines the “school setting” as school grounds, school vehicles, designated bus stops, and school sponsored activities “regardless of location” or “use of school-owned communication device, networks or equipment.” No charges were brought against Student One, who posted the meme.

Slip op. at 3-4 (internal record citations omitted). Student One did not appear at expulsion hearing; however, the school introduced evidence that allegedly “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.” Slip op. at 5.  Following the hearing, the School District’s Board of School Directors (School Board) decided to expel J.S. J.S. appealed to the Lancaster County Court of Common Pleas (trial court), arguing that the Board’s findings of fact were not supported by substantial evidence because J.S. sent the memes to Student One outside of school, over private social media and sent from his private cell phone to Student One’s private cell phone and after school hours. The School District countered that J.S.’s conduct amounted to a “substantial disruption” not subject to First Amendment protection. Even though none of the activity involving the memes occurred on school property, at a school event, or through the use of school equipment, the School district argued a sufficient nexus to the school existed – specifically,  the statement in the meme “shoot up the school” and the fact that the school had to investigate the meme.

The trial court held that J.S.’s hearing did not comport with due process because Student One did not appear at J.S.’s expulsion hearing. The trial court reasoned that students facing expulsion are entitled to a formal hearing, which includes the right to cross-examine witnesses; therefore, because the School District identified Student One as the person J.S. threatened and bullied, the testimony from Student One was necessary in order for the School District to make its case against J.S.

The trial court next held the School Board’s decision was not supported by substantial evidence, an issue the trial court described as “bound up with whether any violation of the First Amendment occurred in the board’s decision.” Trial Ct. Slip op. at 17.   In addressing the First Amendment issue, the trial court explained the analysis used in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969):

The analysis used in the Tinker line of cases has two branches and at least one sub-issue relevant here. The two branches consist of first, whether the speech is such that it can suffer a blanket prohibition, essentially equivalent to a prior restraint and, second, whether the speech created or could reasonably create a substantial disruption in the school. An underlying additional issue is whether a public school has the right to regulate any speech occurring off of school property or outside of school events. All published cases on the issues of threats and bullying within the school context, analyze the speech under an ever developing rubric of student free-speech cases spawned by Tinker. Since Tinker, analysis of student speech rights has become more complex as a result of changing societal norms and technological advancement. The law struggles to keep up. When the Supreme Court authored Tinker in 1969, it had no idea that the analysis it used would one day be applied to instantaneous communication by devices in the hands of nearly every high school student in the country.

Trial Ct. slip op. at 19.

The trial court next addressed J.S. v. Bethlehem Area School District, 807 A.2d 847 (Pa. 2002), in which the Pennsylvania Supreme Court addressed student’s expulsion for a website, created by a student at home,  containing threatening and derogatory comments about a teacher and principal. In that case, reviewing the threats under an objective reasonable-person standard, the Supreme Court concluded that the website did not constitute a “true threat.” The court did however find a sufficient nexus between the web site and the school campus to consider the speech as occurring on-campus because the student had accessed the site at school and showed it to another student and the web site was aimed at the specific audience of students and others connected with the school district and evidence showed that the student’s conduct had caused a “substantial disruption.”  However, the trial court noted that the “objective reasonable-person standard of reviewing threats to determine if they are ‘true’” was abrogated by the Supreme Court in Commonwealth v. Knox, 190 A.3d 1146 (Pa. 2018). Specifically, the court in Knox held that a whether speech constitutes a “true threat” “necessitates an inquiry into the speaker’s mental state . . . in evaluating whether the speaker acted with an intent to terrorize or intimidate, evidentiary weight should be given to contextual circumstances[.]” Trial Ct. slip op. at 23-24, quoting Knox, 190 A.3d at 1156-58 (Pa. 2018). However, the trial court concluded that although J.S. v. Bethlehem was “abrogated as to the standard for determining whether a threat is true or not, it is still useful for its guidance on determining to what extent a school may control protected speech and for the framework it establishes.” Trial Ct. slip op. at 19.

The trial court summarized the necessary “bifurcated analysis,” explaining:

Simply put, is the speech protected by the First Amendment, and if so, can it be prohibited consistent with the First Amendment? Putting it simply and applying it simply are wholly different things. The first question requires an examination of the uncertain nature of whether a true threat analysis is objective or subjective or a hybrid of each, as Justice Wecht proposes. The second question forces a look at Tinker and its progeny. and then analyze whether the memes are true threats under the Knox framework.

Trial Ct. slip op. at 25.

Having determined that Tinker‘s location and disruption tests did not apply because the memes occurred away from the school, the trial court considered “whether it was appropriate for the School District to punish J.S. in light of Knox, which was decided six months after the School District’s adjudication,” concluding that:

Applying the Knox textual analysis results in a conclusion that the School District’s decision was not supported by substantial evidence. There is not substantial evidence to support a finding that J.S. either intentionally or with reckless disregard threatened Student I. The School District did not have testimony from Student I, though J .S. timely requested his presence at the hearing. Through no fault of the School District, it was unable to produce Student I to testify. While the School District contends that Student I’s testimony is unnecessary to determine if a terroristic threat occurred, Knox instructs otherwise. In order to determine if the threat was a true one, the Knox court requires a contextual examination which includes at least two areas necessitating the testimony of Student I, the victim. When the School District’s adjudication in terroristic threats is examined through the lens of Knox, it must be found deficient and unsupported by substantial evidence. J.S.’s appeal of the School District’s terroristic threats charge is sustained.

Trial Ct. slip op. at 36. The School District appealed the trial court’s decision, arguing that the trial court erred in holding that J.S. had a due process right to confront Student One and in its analysis of the First Amendment and that the trial court erred in applying Knox to modify the Tinker “substantial disruption” used in J.S. v. Bethlehem.

Commonwealth Court affirmed on the basis of the trial court’s decision.

The Supreme Court granted allocatur as to the following issues:

(1) Whether, after concluding the Knox “true-threat” framework and “contextual subjective analysis” was required, the Commonwealth Court erred in concluding the longstanding Pennsylvania Department of Education procedures for student disciplinary procedures, which codify Goss v. Lopez, 419 U.S. 565 (Pa. 1975) in the Pennsylvania Administrative Code, violate the Constitutional due process rights of an accused student because the Public School Code does not empower school districts to issue subpoenas to compel witnesses, including student victims, to testify subject to cross examination, and a school district cannot otherwise perform the required “contextual subjective analysis” required by the Knox “true threat” framework absent evidence of the victims’ or listeners’ understanding of the speech.

(2) Whether the Commonwealth Court erred by misapplying Commonwealth v. Knox, 190 A.3d 1146 (Pa. 2018) to modify the substantial disruption test provided by Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) and used in J.S. v. Bethlehem Area School District, 794 A.2d 936 (Pa. 2002) as part of the First Amendment analytical framework applicable to public school student discipline proceedings where the speech at issue involved a threatened school shooting and caused a substantial disruption including distress and alarm to students, a districtwide response, and police involvement, but was made from a private electronic device, at home, and outside of school hours by adopting the “true threat” framework and requiring the school to conduct the “contextual subjective analysis” necessary to criminally prosecute speech under Knox.

For more information, contact Kevin McKeon or Dennis Whitaker.