On November 17, 2021, the Supreme Court of Pennsylvania (Supreme Court) issued its decision on a case involving a student’s off-campus social media posts that appeared to be threatening the school environment. Manheim Township School District (Manheim Township) expelled J.S. for two “Snapchat memes” he sent to another student, Student One, about Student Two. This extended conversation about Student Two took place after school, with each participant using a private cell phone in his respective home.
The first meme sent was a photo 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!” J.S. then created a short video meme, depicting 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.” The quote was attributed to Student Two.
The exchange up to this point had been only between J.S. and Student One. Student One then posted the memes on social media. Various students found out, and upon learning of this from parents, Manheim Township called the local police. The police interviewed J.S. and concluded that J.S. had not made a threat and that there was no threat to school safety and so reported to Manheim Township. Nevertheless, the High School administration interviewed J.S., who explained that he intended his on-line conversation with Student One to be funny and to remain private. Manheim Township then suspended J.S. for making a terroristic threat and for causing serious inconvenience to the school.
Manheim Township formally charged J.S. with violating Manheim Township’s policies against terroristic threats and cyberbullying. The Board held a hearing on the charges. Prior to the hearing, J.S.’s parents attempted to obtain the presence of Student One, as a witness, but student one refused to attend. Manheim Township took the position that it could not compel his attendance, because it lacked subpoena power. The Board issued an adjudication accepting the High School’s recommendation that J.S. be permanently expelled.
J.S. appealed and won before the County Court. On Manheim Township’s appeal, the Commonwealth Court agreed with the lower court that the failure of Student One to testify and be subject to cross-examination violated the constitutional rights of J.S. – though the court admits that such failure was through no fault of the school board. Manheim Township appealed a second time – to the Pennsylvania Supreme Court.
Ultimately, the recent Supreme Court decision makes no determination on the subpoena power of a school district and rules in favor of J.S. The Court held that J.S.’s conduct was not a “true threat.” Citing the recent B.L. v. Mahanoy Area School District case, which references a “true threat” exception to the protection of free speech, Wednesday’s Supreme Court decision establishes a two-part inquiry for ascertaining whether student speech constitutes a true threat:
- Examine the content of the speech, and
- Assess relevant contextual factors surrounding the speech.
The analysis of how these factors constitutes a true threat includes, but is not limited to, the consideration of:
- The language employed by the speaker;
- Whether the statement constituted political hyperbole, jest, or satire;
- Whether the speech was of the type that often involves inexact and abusive language;
- Whether the threat was conditional;
- Whether it was communicated directly to the victim;
- Whether the victim had reason to believe the speaker had a propensity to engage in violence; and
- How the listeners reacted to the speech.
Remember that the specific circumstances, under which the presence of a true threat must be analyzed, vary. For instance, in another recent case on “true threats” in the educational setting, A. F. v. Ambridge Area School District, No. 2:21-CV-1051, 2021 WL 3855900, at *6 (W.D. Pa. filed Aug. 27, 2021), the District Court for the Western District of Pennsylvania did find a student’s communications to be a true threat. In this case, the language at issue was directed, primarily, at one student and the threats were followed by the posting of A.F. with a gun, which was believed at the time to be a real gun.
Document all the specific circumstances surrounding each instance of “true threat;” they must be analyzed within each context. If you have any questions about how to engage in this “true threat” analysis, please contact us. The Stock and Leader School Law Practice Group is here to address your District’s School Law needs. Have a wonderful Thanksgiving Holiday!