J.S. by M.S. and D.S. v. Manheim Twp. SD

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

J.S., a minor by his parents, M.S.: and D.S. : : v. : No. 341 C.D. 2019 : Argued: December 12, 2019 Manheim Township School District, : Appellant :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY PRESIDENT JUDGE LEAVITT FILED: May 13, 2020

The Manheim Township School District (School District) appeals an order of the Court of Common Pleas of Lancaster County (trial court), which reversed the decision of the School District’s Board of School Directors (School Board) to expel J.S., a student at Manheim Township High School. The trial court held that the factual findings of the School Board were not supported by substantial evidence; that the School District’s evidence did not establish that J.S. made terroristic threats or engaged in cyberbullying of another student, in violation of School District policy; and that J.S. was denied due process. The School District contends that the trial court erred and abused its discretion in reaching these conclusions. Upon review, we affirm the trial court. The School District expelled J.S. for two “Snapchat memes” he sent to another student (Student One) as part of an extended conversation over a period of 10 days, during which J.S. and Student One made fun of a classmate (Student Two). J.S. and Student One joked that Student Two looked like a school shooter because of his long hair and preference for wearing a “Cannibal Corpse” tee shirt. Cannibal

Corpse is a hard metal rock group that uses violent lyrics and graphic imagery drawn from horror fiction and films.1 This extended conversation about Student Two took place after school, with each participant using a private cell phone in his respective home. Snapchat is a social media application for smartphones that allows users to send private text messages, photographs and video messages to other users. Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585, 586 n.1 (S.D.N.Y. 2018). A communication sent by Snapchat is called a “snap.” These messages are limited in duration, cannot be accessed from the web, and can only be viewed temporarily.2 As of April 10, 2018, the Snapchat conversation between J.S. and Student One entailed approximately 20 messages and 5 images. Two of the images were “memes.” A meme is a photo or video image with caption superimposed on the image “by the one sending the meme.” Trial Court Op., 2/25/2019, at 2, n.3. Memes are often used for humor and political commentary. The two memes about Student Two, which J.S. sent to Student One, caused the School District to expel J.S. The first meme is a still photograph of Student Two singing into a microphone and is captioned as follows: “I’m shooting up the school this week. I can’t take it anymore I’m DONE!” Reproduced Record at 37a-38a (R.R. __). At the bottom of the meme is a photo-shopped image of J.S. wearing large “Elton John” glasses, apparently watching Student Two’s performance. The response of Student One to this meme was “LOL,” which means “laughing out loud.” School Board Hearing Notes of Testimony, 5/3/2018, at 97-98 (N.T. __); R.R. 148a-49a.

1 See https://en.wikipedia.org/wiki/Cannibal_Corpse (last visited May 12, 2020). 2 As the trial court observed, “[t]he only way to save a message is to take affirmative steps to do so or take a screen shot[.]” Trial Court Op., 2/25/2019, at 34.

Apparently pleased by Student One’s response to this meme, J.S. then created a short video meme. It 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.” R.R. 39a. The quote was attributed to Student Two, who was singing lyrics by Cannibal Corpse. The lyrics of this band employ gory imagery and include references to “eating boys” and “drinking their blood.” N.T. 97; R.R. 148a. 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.” R.R. 40a. 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….” R.R. 3a (emphasis added). 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.” Certified Administrative Record of School District, No. 6 at 000017.3 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.” Id. 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.” Id. No charges were brought against Student One, who posted the meme.

3 The School District inadvertently included a more recent version of Board Policy No. 249 in its reproduced record and attached the correct version to its reply brief. See School District Reply Brief at 1 n.1.

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, 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. On May 11, 2018, the School Board issued an adjudication accepting the High School’s recommendation that J.S. be expelled for “making terroristic threats and engaging in cyber-bullying against another through social media.” School Board Adjudication at 2 and 5, Findings of Fact Nos. 9 and 34; R.R. 3a, 6a. J.S. appealed to the trial court, contending that the School Board’s conclusions were unfounded. He argued that its factual findings were not supported by substantial evidence, inter alia, because they were based on hearsay to which J.S. had objected. He also argued that he had been denied due process because he was unable to confront the witness, Student One, identified in the School District’s formal charges as the intended victim of terroristic threats and cyberbullying. The trial court sustained J.S.’s appeal. First, 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 explained that students facing expulsion are entitled to a formal hearing, which includes the right to cross-examine witnesses. Because the School District identified Student One as the person J.S. threatened and bullied, the trial court held that testimony from Student One was necessary in order for the School District to make its case against J.S.

The trial court next held that J.S. did not violate the School District’s terroristic threats policy. The School District offered no evidence that J.S. intended the meme to terrorize Student One or to have the meme be seen by the public. Intent is central to the definition of “terroristic threat” in Board Policy No. 218.2. Finally, the trial court held that the School District did not prove a violation of the anti-bullying policy, which applies to the school setting. There was no evidence that J.S. created either of the two offending memes in a school, on school grounds, in a school vehicle, at a bus stop, at a school sponsored activity or by using school equipment. Trial Court Op., 2/25/2019, at 38. J.S.’s memes were created and sent from his private cell phone to Student One’s private cell phone and after school hours. On appeal,4 the School District raises four issues. First, it contends that the trial court erred in holding that J.S. had a due process right to confront Student One, the person identified by the School District as the target of J.S.’s alleged terroristic threats and cyberbullying. Second, it contends that the trial court abused its discretion because the trial court did not defer to the School District’s interpretation of its policies against terroristic threats and cyberbullying. Third, it contends that the trial court erred in its analysis of the First Amendment.5 Fourth, it contends that the trial court abused its discretion in its application of the substantial evidence standard to the School Board’s findings of fact.6

4 “This Court’s scope of review determines whether the trial court abused its discretion, committed an error of law, or violated constitutional rights.” Yatron by Yatron v. Hamburg Area School District, 631 A.2d 758, 760 n.1 (Pa. Cmwlth. 1993). 5 U.S. CONST. amend. I. 6 In its fourth issue, the School District argues that the trial court failed to defer to the School Board’s findings of fact and conducted what amounted to a de novo review. School District Brief at 37. The School District complains that the trial court focused on Student One as the alleged target of the terroristic threats and ignored the School Board’s finding that J.S. referred to the High

Having reviewed the record, the arguments of the parties, and the relevant law, we conclude that the School District’s issues have been ably resolved in the thorough and well-reasoned opinion of the Honorable Leonard G. Brown, III. Therefore, this Court affirms on the basis of the trial court’s opinion in J.S., a minor, by his parents, M.S. and J.S. v. Manheim Township School District (C.C.P. Lancaster Cty., No. CI-18-04246, filed February 25, 2019).

Mary Hannah Leavitt, President Judge

School as the target of the shooting and “identified a High School student by name as the specific target of the threat.” School District Brief at 42. However, the School District charged J.S. with sending “several threatening social media messages to another [High School] student on April 10, 2018.” R.R. 24a. It did not charge J.S. with making threats against the High School or any individual other than Student One. The School District’s argument lacks merit.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

J.S., a minor by his parents, M.S.: and D.S. : : v. : No. 341 C.D. 2019 : Manheim Township School District, : Appellant :

ORDER

AND NOW, this 13th day of May, 2020, the order of the Court of Common Pleas of Lancaster County (trial court) dated February 25, 2019, is AFFIRMED on the basis of the trial court’s opinion in J.S., a minor, by his parents, M.S. and J.S. v. Manheim Township School District (C.C.P. Lancaster Cty., No. CI- 18-04246, filed February 25, 2019).

Mary Hannah Leavitt, President Judge