          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.
                                                 2
             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



                                          3
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.
                                               4
              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.


                                          5
               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
                                                  6
               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.
                                                7
          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
