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

[J-34-2021][M.O. – 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 5/13/20 at

: No. 341 CD 2019 affirming the order of

: the Lancaster County Court of

v. : Common Pleas, Civil Division, dated

: 2/25/19 at No. CI-18-04246

:

MANHEIM TOWNSHIP SCHOOL :

DISTRICT, :

:

Appellant : ARGUED: May 18, 2021

CONCURRING OPINION

JUSTICE SAYLOR DECIDED: November 17, 2021

I agree with the outcome of an affirmance, but I would apply a substantially different

rationale.

First, I support Justice Dougherty’s position that the Court should address the first

issue on which this appeal was allowed. School boards must have the power to issue

subpoenas, or to petition courts of common pleas to issue them, either under the conferral

of such authority reposited in the Teachers’ Tenure Act, see 24 P.S. §11-1128, as the

Pennsylvania School Board Association argues, or as an essential corollary to school

boards’ authority, under Section 1318 of the Public School Code, to impose forms of

discipline that require the affordance of due process. See 24 P.S. §13-1318; see also 22

Pa. Code §12.8(b); cf. Commonwealth v. Beam, 567 Pa. 492, 495-96, 788 A.2d 357, 359-

60 (2002) (elaborating on the implied powers of administrative agencies necessary to the

performance of their essential functions).

Second, I would credit Appellee’s position that the Board’s written adjudication is

legally inadequate and lacking in sufficient evidentiary support. According to Appellee,

the Board embarked on its own case-specific policymaking venture -- expelling Appellee

because it found his off-campus conduct to be distasteful, disruptive, and unacceptable -

- rather than analyzing and adhering to the actual terms of the written policies that he was

accused of violating. See, e.g., Brief for Appellee at 15. In my judgment, the record

provides substantial support for this position.

The Board’s apparent lack of concern for the relevant policy terms is most manifest

relative to the charge of cyberbullying. As the county court explained, this policy, by its

explicit terms, applies only to the actions of students occurring in a “school setting.” Policy

Manual, Manheim Twp. Sch. Bd. §249 (last revised Feb. 21, 2019). And, per the policy,

“school setting” is defined as “in the school, on school grounds, in school vehicles, at a

designated bus stop or at any activity sponsored, supervised or sanctioned by the school.”

Id. Since Appellee indisputably was not in a school setting when he sent memes privately

to Student 1 from his home, the Board’s finding that Appellee’s conduct constituted

cyberbullying under its policy is clearly, if not blatantly, erroneous.1

The analysis relative to the charge of violating the school’s policy against terroristic

threats is somewhat more complicated. Unlike the prohibition against cyberbullying, this

policy doesn’t straightforwardly specify that it applies only to on-campus conduct, but the

policy does contain some indicia that such a limitation was intended. See id. §218.2

1 Notably, in 2008, the Legislature authorized schools to adopt bullying policies that

encompass certain acts occurring outside the school setting. See 24 P.S. §13-1303.1-A.

While the Board’s present policy has been amended to extend its reach, the policy in

effect at the time the conduct in issue here occurred remained tethered to the school

setting.

[J-34-2021][M.O. - Todd, J.] - 2

(authorizing school superintendents to report to police incidents involving terroristic

threats “on school property, at any school-sponsored or on a conveyance providing

transportation to or from a school or school-sponsored activity” and requiring

superintendents to notify parents of suspects and victims regardless of whether the police

department having jurisdiction over “the school property” has been notified).2 Moreover,

the policy was implemented under Section 510 of the Public School Code, see Policy

Manual, Manheim Twp. Sch. Bd. §000 & n.2, which tethers school boards’ power to make

rules and regulations governing students’ conduct to the time during which “they are

under the supervision of the board of school directors and teachers, including the time

necessarily spent in coming to and returning to school.” 24 P.S. §5-510. Given the

relevant allusions in Section 218.2 -- and particularly on account of the limitations

contained in the statutory enabling authority invoked by the Board itself -- it seems evident

that the policy must be construed to apply only to threats occurring on school property or

while an offending student is under school supervision.

Significantly, in light of the boundaries on school boards’ authority to regulate the

conduct of students established by the Legislature in Section 510, by design it simply had

not tested the limits of the constitutional restrictions on the regulation of off-campus

speech under the Tinker line of cases. Accordingly, I agree with Appellee that the School

2 The explicit school-property nexus related to reporting and parental notification suggests

that the Board contemplated that the reach of its policy extended only to on-campus

conduct. This is so particularly since there would be no apparent reason that the Board

would undertake to authorize reporting and require notification relative to on-campus, but

not-off campus, violations, if the latter were within its contemplation when it established

the policy.

[J-34-2021][M.O. - Todd, J.] - 3

District’s continuing efforts to inject this line of constitutional analysis into this case is both

misguided and confounding.3

Similarly, the constitutional free-speech concerns addressed in Commonwealth v.

Knox, 647 Pa. 593, 190 A.3d 1146 (2018), are also not directly relevant here. In this

regard, to the degree that Section 218.2 could be construed as applying to off-campus

speech, the policy by its own terms requires a subjective intent to terrorize to support

discipline. See Policy Manual, Manheim Twp. Sch. Bd. §218.2 (defining “terroristic

threat,” in relevant part, as a threat made “with the intent to terrorize another,” with the

intent to “cause serious public inconvenience,” or with “reckless disregard of the risk of

causing such terror or [public] inconvenience”). The policy itself, therefore, affords the

highest degree of tolerance that may be required under constitutional norms protecting

speech (consistent with the criminal-law decisions such as Knox).4 As such, it doesn’t

implicate the disputes as to whether a lesser (or objective) standard should apply relative

to regulation by school officials of students’ off-campus conduct.

Since I find the constitutional arguments to be largely superfluous, what would

remain, in my judgment (assuming the Board’s policies could apply to support regulation

of off-campus speech, despite their derivation from a statute specifying to the contrary) is

a review of the adequacy of the Board’s findings and the substantiality of the evidence

3 This does not mean that school districts are powerless to respond to off-campus conduct

that raises safety and security concerns. They are certainly free to engage the police, as

occurred here, and to take whatever internal safety and security measures they deem

reasonably necessary. What they should not be free to do, under the prevailing legislative

scheme invoked by the Board in establishing its policies for the relevant time period, is to

impose post hoc discipline on the order of lengthy suspensions or expulsions for off-

campus conduct.

4 As a caveat, the issue of whether recklessness can suffice to support speech regulation,

at least in a criminal or quasi-criminal context, is presently before this Court in In re J.J.M.,

23 MAP 2020. Here, however, Appellee acknowledges that this has not been made an

issue in the present case. See Brief for Appellee at 50 n.28.

[J-34-2021][M.O. - Todd, J.] - 4

relied upon by the Board. In this respect, I return to the theme that the Board’s findings -

- here to the effect that Appellee made terroristic threats -- afford insufficient attention to

the terms of the policies in issue. In this regard, the Board refrained from analyzing each

element of the policy’s definition of terroristic threats in relation to Appellee’s

circumstances, but instead, it proceeded in a cryptic and conclusory fashion to merely

pronounce that such threats had been made. See, e.g., Adjudication of the Manheim

Twp. Sch. Bd. dated May 10, 2018, at 6. Most significantly, the Board’s analysis affords

no attention at all to the element of specific intent that is manifest in the policy definition.5

Finally, I tend toward the majority’s assessment that the evidence of a specific

intent to terrorize, or recklessness pertaining to terrorization, is also lacking (albeit not

wholly on account of the discrete rationale set forth in the majority opinion). It seems to

me, however, that the Board’s failure to issue a reasoned adjudication fairly addressing

the essential elements of a terroristic threat as set forth in the policy he was accused of

violating should be deemed disabling in the first instance.

Justice Mundy joins this concurring opinion.

5 Notably, in its factual findings, the Board had specifically apprehended that Appellant’s

memes portrayed another student as threatening a school shooting. See Adjudication of

the Manheim Twp. Sch. Bd. dated May 10, 2018, at FOF ¶9. Nevertheless, this critical

factor is missing entirely from the Board’s analysis of the disciplinary charges. See id. at

6-7.

[J-34-2021][M.O. - Todd, J.] - 5