J.S. v. Manheim Twp. SD, Aplt.

[J-34-2021] [MO: Todd, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

J.S., A MINOR BY HIS PARENTS, M.S. : No. 2 MAP 2021

AND D.S., :

: Appeal from the Order of the

Appellees : Commonwealth Court dated May 13,

: 2020 at No. 341 CD 2019 Affirming

: the Order of the Lancaster County

v. : Court of Common Pleas, Civil

: Division, dated February 25, 2019 at

: No. CI-18-04246.

MANHEIM TOWNSHIP SCHOOL :

DISTRICT, : ARGUED: May 18, 2021

:

Appellant :

DISSENTING OPINION

JUSTICE DOUGHERTY DECIDED: November 17, 2021

This case presents an opportunity for this Court to squarely address a significant

issue of first impression pertaining to the due process rights of students facing school

discipline. Deciding the overarching due process question in turn requires, inter alia, that

we: interpret certain provisions of the Pennsylvania Code, the Public School Code of

1949, and the Administrative Agency Law; assess the interplay between the relevant

statutes and resolve any conflicts that may exist; and determine whether such

interpretations were properly employed in this case and, if not, whether that failure

deprived appellee J.S. of his constitutional right to due process. Our definitive resolution

of these various issues, which are all but certain to recur, is of substantial public

importance, particularly to school boards, school administrators, teachers, students, and

parents throughout the Commonwealth.

Yet, the majority declines to answer these weighty questions. Deeming it “prudent

to resolve this appeal only on the First Amendment question,” the majority sidesteps the

highly concerning procedural aspects of J.S.’s expulsion to focus exclusively on the

substance of the speech underlying his punishment. Majority Opinion at 13. The majority

reasons:

[I]f we were to find that J.S.’s due process rights were not violated, we would

still have to determine whether the [Snapchat] memes were protected under

the First Amendment. Likewise, if we were to find the School District did

violate J.S.’s due process rights, there would be the theoretical possibility

of a remand, and so we would still have to address the First Amendment

question, as it would potentially moot such remand. Second, the School

District and amicus Pennsylvania School Boards Association (“SBA”)

disagree about whether a school district has the ability, under the

Pennsylvania School Code, to compel the testimony of a student at an

expulsion hearing ― an integral part of the due process analysis. The

School District claims that it does not have statutory or inherent authority to

compel student testimony, . . . while the SBA maintains school boards do

have that power. . . . Thus, the two entities ostensibly representing our

Commonwealth’s schools are not in alignment on the implicated subpoena

issue.

Id. (citations omitted).

With respect to the majority’s first rationale, in my respectful view, regardless of

our disposition of the issues presented in this appeal, there is simply no possibility —

theoretical or otherwise — of a remand, the only potential purpose of which would be to

hold a new expulsion hearing. This conclusion is inescapable for one simple reason: J.S.

is no longer a student within the Manheim Township School District (“School District”).

Notably, J.S. was a seventeen-year-old eleventh grade student at the time this incident

occurred more than three years ago in April of 2018. See School District’s Findings of

Fact, 5/10/2018 at ¶1. The trial court sustained J.S.’s appeal and ordered his expulsion

expunged in February of 2019, see Trial Court Order, 2/25/2019, and the School District’s

appeals have extended the duration of this case well past the natural point at which J.S.

would have graduated or moved on. And since a school’s power to suspend or expel is

[J-34-2021] [MO: Todd, J.] - 2

limited to “any pupil on account of disobedience or misconduct,” 24 P.S. §13-1318

(emphasis added), it necessarily follows that the school has no authority to retroactively

seek to punish an individual, like J.S., who is a former pupil but not a current one. Thus,

contrary to the majority’s belief, there is no conceivable circumstance under which a

remand would be warranted in this case.

I am likewise unpersuaded by the majority’s second stated basis for declining to

address the due process issue. The majority contends disagreement between the School

District and SBA regarding the subpoena power of school boards militates against

resolving the due process question in the present appeal. See Majority Opinion at 13.

But I actually draw the exact opposite conclusion: from my point of view, the clear

uncertainty permeating the relevant statutes, as evidenced by the differing positions

offered by the School District and its own amicus, underscores the critical need for this

Court’s guidance. Moreover, that the parties and their amici have provided us with

considered, alternative readings of the relevant statutes will, in my view, only aid us in our

ultimate resolution of this difficult matter. Respectfully, I fail to see how less diverse

viewpoints in the briefing would benefit our analysis.

To be clear, the free speech claim the majority decides is also highly important,

and there is much to commend in its thoughtful analysis of that issue. As well, I

acknowledge that since the two issues upon which we granted discretionary review both

concern federal constitutional rights, the doctrine of constitutional avoidance does not

provide any meaningful guidance in determining which issue we should deem dispositive.

Cf. In re “B”, 394 A.2d 419, 421-22 (Pa. 1978) (“Ordinarily, when faced with . . . both

constitutional and non-constitutional questions, we will make a determination on non-

constitutional grounds, and avoid the constitutional question if possible.”). Still, though, I

find it more logical to first decide whether the procedure underlying J.S.’s expulsion was

[J-34-2021] [MO: Todd, J.] - 3

tainted before deciding whether, as a substantive matter, the expulsion so imposed

violates the First Amendment. I respectfully dissent on this basis.

[J-34-2021] [MO: Todd, J.] - 4