Pennsylvania Court Reverses Student's Expulsion Over A Snapchat Post, Reminds School Students Still Have Rights

from the disrupting-school-disruption dept

Do you want cheer fucked? Because this is how you get cheer fucked.

No less than the highest court in the land said the off-campus speech of students is subject to the First Amendment, not the whims of school administrators who feel ways about online stuff. A cheerleader expressing her displeasure with school related activities posted a litany of f-bomb-laden complaints to Instagram, resulting in her being summarily dismissed from the cheer team. The Supreme Court said "fuck cheer" is protected speech, no matter how school administrators felt about it.

Students' constitutional rights don't disappear just because they're students. This point has been driven home several times by courts, most famously by the Supreme Court's 1969 Tinker decision, which stated:

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

And yet schools continue to argue otherwise. But these arguments are unavailing, as this recent Pennsylvania state court decision [PDF] points out. Penncrest High School expelled G.S. (a minor referred to only by their initials) for posting a band's lyrics to Snapchat. Despite the fact G.S. did this off-campus during non-school hours, the school felt compelled to punish him for it.

Here's how the school's stupidity began, as recounted by the Pennsylvania court.

On April 1, 2018, G.S. used his personal smartphone to post the following on Snapchat, where he had 60 to 65 followers, including 4 or 5 other School District students:

Everyone, I
despise everyone!
Fuck you,
eat shit,
Blackout,
the world is a graveyard!
All of you, I
will fucking
kill off all of
you! This is
me, this is
my, snap!

As attuned as schools are to the neverending threat of shootings, it's understandable the school might have been concerned by this post, which -- taken at face value -- appears to threaten fellow students with death. Context matters, but all context was apparently ignored by the school.

Though G.S. did not tag his post as such, the words it contained were copied from “Snap,” a song by the death metal band Spite. The only alteration G.S. made in his post to the excerpted lyrics was to add several exclamation points. G.S. did not direct this post toward any particular person or group and did not tag any other Snapchat users in it, nor did he put up this post at a time when he was involved in school-related activities. Rather, he posted while at an Easter Sunday celebration with his extended family in New Jersey.

Other students noticed the post and tagged in the school student body while reposting screenshots of the Snapchat message. Then parents got involved, notifying the Pennsylvania State Police, visiting the barracks to talk directly with troopers as well as sending emails to PSP officers. Not long after that, G.S. was visited by state troopers. His parents weren't home so the troopers left and approached the assistant district attorney, seeking permission to arrest G.S. for issuing terrorist threats. Troopers called school administrators and informed them they were looking to bring charges against G.S.

Finally, G.S.'s parents were contacted and informed of the criminal proceedings. G.S. and his parents voluntarily went to the State Police barracks so G.S. could be questioned. G.S. admitted to making the post but told troopers it was just a quote from a band and not intended to threaten or harm anyone. None of that mattered. The DA told troopers to move forward with criminal charges. G.S. was arrested and taken to a juvenile detention center.

Meanwhile, school officials continued to receive reports about the post. A district-wide message was sent out by the school, notifying parents that law enforcement was investigating a threat by a student.

This had an immediate effect. Despite being short on facts -- namely, the "threat" in G.S.'s post being copied from a band's song lyrics -- the missive from the school resulted in roughly a quarter of the student body being absent the following day. Those who did show up appeared "anxious and upset."

Outside of school, G.S. underwent a court-ordered psychological evaluation. That evaluation cleared G.S.

His [Snapchat post] is a duplication of emotionally charged lyrics found in a . . . song that, while disturbing in content and audio, represent a low level of threat to the community. Specifically, [G.S.] does not have the resources, motivation, or intent to carry out the threat. [...] His level of risk for future violent behavior is [l]ow.

G.S. was released and placed on house arrest. School administrators sent a letter to his parents informing them he would be suspended for ten days. Another letter followed, extending the suspension for three more days and stating criminal charges were being sought. Six days later, the school informed G.S.'s parents the district was seeking to expel him. Those proceedings proceeded, ignoring the facts that the post was composed of song lyrics, was not posted to threaten anyone, and G.S being cleared by a court-ordered psychiatrist.

The minor has the First Amendment and Pennsylvania's constitution on his side. The school has measurable disruption and potential criminal charges on its side. The court comes down on the side of the student.

First of all, it points out, the school is no longer welcome to argue the Snapchat post was a "true threat." It abandoned that argument during the expulsion proceedings.

Initially, we note that much of the School District’s argumentation is based upon its position that G.S.’ post constituted a true threat, as well as that it was both legally proper and factually justified for it to expel G.S. on that basis. [...] These positions, however, misapprehend the actual reasoning employed by the School District’s hearing officer in his August 13, 2018 report. As we have already mentioned, the hearing officer declined the opportunity to decide whether the offending post was a true threat; indeed, the hearing officer remarked that “it is not necessary in this matter to make [that] determination[.]” Instead, the hearing officer reasoned that the charges against G.S. should be and G.S. should be expelled, as well as that the School District could do so without violating G.S.’ free speech rights, because his post “materially disrupted class work, involved substantial disorder[,] and invaded the rights of others.”

So, it's down to "substantial disruption" versus the free speech rights of students who aren't on campus or engaged in school activities. And on that prong of free speech examination, the school has no case.

In this instance, G.S. did not explicitly target specific Penncrest students, let alone the broader School District community, and he posted at a time when he was neither at Penncrest nor engaged in school-related activities. Thus, G.S.’ post was unambiguously off-campus speech, regarding which the School District’s disciplinary reach was sharply circumscribed by both the First Amendment and Article I, Section 7. Given this, and no matter how objectionable the content of G.S.’ post may have been, it is evident that the School District markedly failed to clear the extremely high bar set by these constitutional provisions and, thus, could not punish him for the disruptions that occurred at Penncrest.

The school's arguments are bad, the court said. The school wants speech judged by its reaction, rather than its intent. That's not the way the law works.

Thus, the School District would have us evaluate the constitutional sanctity of disciplining students for disruptions caused by off-campus speech through an analytical framework that would assign great value to the societal response to such speech, but disregard the context in which it was uttered, as well as the intent of the speaker. We decline to accept the School District’s deeply problematic suggestion. Were we to do otherwise, the result would be to imbue public schools with the power to discipline their students for publicly expressing interests or sentiments that school administrators, faculty, or members of polite society considered execrable or simply did not understand, regardless of how, when, where, or why that expressive conduct occurred.

Public schools would consequently become de facto full-time censors, preventing children from making their own decisions about what aspects of popular culture are worthy of consumption or what beliefs should be held, and interfering with parental authority, through a constant potential for punishment that would hang over students like the Sword of Damocles. Such an expansion of governmental authority would do great harm to the expressive rights of individuals still “in the formative years…"

The expulsion and suspension are reversed. The First Amendment prevails and G.S.'s record will be stripped of the district's unconstitutional add-ons. Even minors have free speech rights and the school should have known this, given there's plenty of precedent on the books at all levels of the judicial system affirming these rights. The school fully earned this loss. Hopefully, it will accept this ruling and stop wasting the public's money attempting to undermine free speech rights.

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Filed Under: 1st amendment, free speech, lyrics, pennsylvania, rights, schools


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  1. icon
    Stephen T. Stone (profile), 13 Jan 2022 @ 11:28am

    I propose adding the verb “cheerfucked” to the Techdirt lexicon. For example: “Penncrest High School really cheerfucked itself when it violated a minor’s First Amendment rights.”

    reply to this | link to this | view in thread ]

  2. icon
    That Anonymous Coward (profile), 13 Jan 2022 @ 11:43am

    "or intent to carry out the threat."

    Question - did this same school board call the FBI on the band?
    I mean if the words are only a threat, as one has to assume from their insane response, then anyone ever having spoken or typed those words is making threats and needs to be stopped.

    Perhaps they were unable to locate another child around the same age who could explain to them they were song lyrics before they went full batshit crazy & terrorized parents & students by calling it a threat in a publication before having any actual evidence?

    To continue to call it a threat is just letting them feel better about their inability to think. Reposting song lyrics isn't a crime (glares at the RIAA corner SHUT IT!) and just because you assume it is an orange when its actually red doesn't change an apple into an orange. Context matters, but the beauty of zero tolerance once again is that everything has to be seen as the worst thing you can imagine it might mean & ignore any context or critical thinking.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 13 Jan 2022 @ 11:44am

    The relevant school administrators should themselves be arrested for terrorism for threatening the armed might of the State against this student.

    FWIW.

    reply to this | link to this | view in thread ]

  4. identicon
    Glen, 13 Jan 2022 @ 11:51am

    Here's to hoping a lawsuit will follow.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 13 Jan 2022 @ 12:19pm

    Some context is important

    the missive from the school resulted in roughly a quarter of the student body being absent the following day.

    1) G.S. was suspended in the Before Times, when students gathered in epidemically unsound gatherings for grouped learning. A quarter of the student body being absent in one day was unusual in those times.

    Those who were present appeared to be anxious and upset, with many students and their families seeking assurances from staffers that the school was safe. ... In addition, there was an increased police presence on campus.

    2) Even in the Before Times, police presence on school campuses was itself considered a hazard. You have a bunch of people with guns running around the school, you're going to be upset. Even if - perhaps especially if - they also have badges.

    I just thought I'd say. You were looking nervous.

    reply to this | link to this | view in thread ]

  6. icon
    Ceyarrecks (profile), 13 Jan 2022 @ 12:22pm

    The Reason:

    the reason for "schools continue to argue otherwise" is due to the very detailed display Hasan Minhaj gave in the netflix vid [Is College Still Worth It?] https://www.youtube.com/watch?v=YytF2v7Vvw0 on how "higher" education facilities only see their students as Cash Cows to be kept in as much captivity as possible; Hence the schools thinking that it "owns" the student,... for as many years as they can get away with per the exorbitant tuition, fees, etc. that they place on said students.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 13 Jan 2022 @ 12:30pm

    Re: Some context is important

    And just a follow-up:

    The expulsion and suspension are reversed.

    Yay. The student who was in 11th grade at the time, is no longer expelled from the school he would have graduated from years ago. Your years of travail are not going to be returned to you undamaged. The best you can hope for is a clear precedent for the next lyric-quoting youth.

    reply to this | link to this | view in thread ]

  8. icon
    Wyrm (profile), 13 Jan 2022 @ 1:02pm

    [...] or intent to carry out the threat.

    Interesting that they still considered it a threat after investigating it.
    Their conclusion, read as is, is still that a threat was made, just that the student didn't have the means or intent to execute it. Either they believe this, or they're not careful with their words. In both cases, this could be dangerous if the report shows up sometime later in his life.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 13 Jan 2022 @ 1:03pm

    "the reaction"

    Would that be the reaction where a handful of G.S.'s peers thought it might be a good idea to point it out to someone just in case, or would it be the reaction of the school and some parents that made some students "anxious and upset"?

    reply to this | link to this | view in thread ]

  10. icon
    PaulT (profile), 13 Jan 2022 @ 1:06pm

    Re: Re: Some context is important

    Yeah... that's the thing that hit me...

    "On April 1, 2018"

    "OPINION BY JUDGE CEISLER FILED: January 7, 2022"

    It's a result in terms of precedent and hopefully getting some sanity for other people included, but that's 4 years that's not going to be returned and the personal consequences over those years may have been severe. All for something that a basic talk combined with common sense should have resolved.

    Even when people win, they can still lose...

    reply to this | link to this | view in thread ]

  11. icon
    Norahc (profile), 13 Jan 2022 @ 1:25pm

    Re:

    Yeah, Tinker has been on the books for almost 50 years now. Guess the school will try the Qualified Immunity defense to the lawsuit.

    reply to this | link to this | view in thread ]

  12. identicon
    MightyMetricBatman, 13 Jan 2022 @ 1:35pm

    Re: Re: Re: Some context is important

    Always been the problem with court cases involving schools and students. By the time the decision has come down that the school violated students' rights the damage cannot be even partially remedied for that student.

    And it is rare that any school cares to follow the precedent. The courts can rule all they want, school is still a no free speech zone regardless.

    reply to this | link to this | view in thread ]

  13. icon
    ECA (profile), 13 Jan 2022 @ 2:30pm

    Re:

    Administrators Should be held to the same, as they tried to the student.
    THEY disrupted classes.. NOT the student.
    What are the Odds, that every Other student that got the Post, Knew What was being said?

    reply to this | link to this | view in thread ]

  14. icon
    JoeCool (profile), 13 Jan 2022 @ 3:44pm

    Re:

    I've always said that zero tolerance should be read as zero intelligence.

    reply to this | link to this | view in thread ]

  15. icon
    Bill Silverstein (profile), 13 Jan 2022 @ 5:05pm

    Students have no first amendment rights

    Tinker is dead! Look at JOHN DARIANO v. MORGAN HILL UNIFIED SCHOOL DISTRICT, 745 F.3d 354 (9th Cir.2014). Wearing American Flags in School is not permitted because Mexican students might object to it and become violent. The heckler's veto won.

    reply to this | link to this | view in thread ]

  16. icon
    That One Guy (profile), 13 Jan 2022 @ 7:56pm

    'Be afraid!'

    If causing a 'disruption' to school is grounds for not just suspension but expulsion then it would seem the school staff who treated the whole thing like a legitimate and valid threat even after the student was cleared and deemed harmless would be much more deserving of being shown the door.

    reply to this | link to this | view in thread ]

  17. icon
    That Anonymous Coward (profile), 14 Jan 2022 @ 2:07am

    Re: Re:

    Its a human thing.

    Why do we have to take our shoes off to get on planes?
    Because 1 asshole tried to set off a shoe bomb on an airplane once.
    He didn't succeed, but massive resources have been devoted to checking all shoes all the time now.
    I don't recall many stories about 1000 shoe bombers they have caught since then.

    Why are we limited to how much liquid we can get on planes?
    Because 1 time some dudes tried to create a binary explosive on a flight.
    How many binary weapons of mass destruction have they caught?

    Dude drove through a Christmas Parade, an event no one could have predicted, its not like it was his 15th DUI. But everyone is outraged that he was granted bail on other charges (and they screwed up finding other charges against him), because if we just lock all the bad people up then nothing bad will ever happen ever again.

    Fewer people died on 9-11 than during Covid & yet we aren't forcing people to roll up their sleeves & get a shot before we allow them to travel.

    The greatest fear schools have is being found responsible after a tragedy. So to avoid being blamed, they expel first & ask questions later. They never are allowed to think because they can safely hide behind policy. We break out the see through backpacks, put in metal detectors, add more cops but at no time do we look at what the underlying problems are & how to deal with them we just clamp down harder ignoring those problems.

    Of course the recent Oxford School tragedy turns this all on its head, reports that the shooter was caught with live ammo on school grounds & he wasn't removed while elsewhere we see poptarts bitten into a gun shape and a 1st grader arrested & removed from the school.

    For all of the talk, screaming, moar cops, more discipline...
    The best plan they've come up with for dealing with school shootings is to teach little kids rhymes about hiding & being quiet & adding more fear and anxiety to their lives, that make them act out more, that get them in more trouble, that never gets any help (1 counselor for 500 kids... really?), that gets them flagged as problem children which gets them more negative attention and then a kid shoots up a school... but at no point has anyone put any actual solutions like making mental health professionals a priority... just the fame seeking ones who like to claim it was pron or video games that caused this so we just need to ban those from society and this will all be better.

    reply to this | link to this | view in thread ]

  18. icon
    Bergman (profile), 14 Jan 2022 @ 6:23am

    Re: Re: Re:

    What we need is law that fires - by eliminating their positions - any school administrator that enacts a zero-tolerance policy.

    The ONLY reason positions such as principal exist in public schools is to make difficult decisions. If all such decisions are reduced to a flow chart, then the need for those positions is eliminated because any teacher can follow a flow chart.

    reply to this | link to this | view in thread ]

  19. icon
    Bergman (profile), 14 Jan 2022 @ 6:26am

    Re: Re: Re: Some context is important

    It goes far beyond common sense - the school’s reaction was literally felonious, under federal civil rights laws. But at no time did any school official ever let the fact their actions could result in a ten year prison sentence slow their reactions, let alone halt them.

    reply to this | link to this | view in thread ]

  20. icon
    Bergman (profile), 14 Jan 2022 @ 6:31am

    Re: Re: Re: Re: Some context is important

    So if you see it happening, weaponize the system against the school officials.

    Any rights violation you can win a civil court case for is also a crime - almost invariably a felkny - under federal civil rights laws (18 USC 241, among others).

    A citizen’s arrest for a personally-witnessed federal felony is lawful on all federal lands and in 49 out of 50 states according to the US Supreme Court (United States v. Di Re (1948)). The only state it’s not lawful in is North Carolina.

    reply to this | link to this | view in thread ]

  21. icon
    Bergman (profile), 14 Jan 2022 @ 6:34am

    Re:

    They decided it was a threat before they considered any evidence, under a system where the burden of proof is on the accuser. Why should evidence proving his innocence matter to them?

    reply to this | link to this | view in thread ]

  22. icon
    Bergman (profile), 14 Jan 2022 @ 6:37am

    Re: 'Be afraid!'

    Especially since convicted felons are ineligible for teaching certificates in many states, and violating student rights the way this school did is a felony (18 USC 241).

    reply to this | link to this | view in thread ]

  23. identicon
    Anonymous Coward, 14 Jan 2022 @ 7:01am

    Re: Re: Re: Re:

    "...any teacher can follow a flow chart." Citation Needed

    reply to this | link to this | view in thread ]

  24. icon
    That Anonymous Coward (profile), 14 Jan 2022 @ 7:55am

    Re: Re: Re: Re:

    What we need is adults who are capable of rationale thought even in the face of outraged voters screaming for blood.

    Survivorship Bias is a thing.
    "Wald noted that the military only considered the aircraft that had survived their missions – ignoring any bombers that had been shot down or otherwise lost, and thus also been rendered unavailable for assessment. The bullet holes in the returning aircraft represented areas where a bomber could take damage and still fly well enough to return safely to base.
    Therefore, Wald proposed that the Navy reinforce areas where the returning aircraft were unscathed,  inferring that planes hit in those areas were the ones most likely to be lost. His work is considered seminal in the then-nascent discipline of operational research."

    They demand decisions based on having 'facts' that no one was even aware of before the incident assuming that all future events like this share the same trigger and if we just remove the trigger we've solved it.

    This is magical thinking & ignores any events where a tragedy might have been averted because parents or a teacher might have reached out to a child at the right moment and altered what could have happened. Since it never made the news, its not a 'valid' solution in many peoples minds.

    Yes its terrible that children have easy access to weapons, but strip searching each child on their way into school won't stop the next shooting.
    They rarely dig into the actual reasons some shooters lash out & often give a pass to "good kids" who were tormenting the shooter until he broke and started shooting.

    Try to claim this never happens and I'll roll out the high school football teams who get passes on drinking, drugs, rape or the "team building" hazing where younger players are sexually violated & worse by older players who had it done to them & all the adults look away because 'sportsball' tradition... then a frat kills their baby with the same antics and now its a problem.

    reply to this | link to this | view in thread ]

  25. identicon
    Anonymous Coward, 14 Jan 2022 @ 9:52am

    Re: Some context is important

    I saw "the Before Times" and immediately thought you meant pre-Columbine. It really is a different world out there.

    reply to this | link to this | view in thread ]

  26. icon
    Tanner Andrews (profile), 18 Jan 2022 @ 3:48am

    Students' constitutional rights don't disappear just because they're students.

    Well, actually, they do. At least off campus, they have only such free speech rights as may meet with administration approval. Morse v. Frederick, 551 U.S. 393 (2007). In that case, off campus speech consisting of a banner saying ``bong hits 4 jesus'' was found to offend school administration, and the resulting discipline was upheld.

    It might be argued that there is some limited on-campus free speech remaining under Tinker, but that is not clear.

    reply to this | link to this | view in thread ]


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