Pennsylvania Supreme Court Clarifies Standard for School District Regulation of Off-Campus Speech

Tucker Arensberg, P.C.

Tucker Arensberg, P.C.

In J.S. by M.S. v. Manheim Township School District, 263 A.3d 295 (Pa. 2021), Pennsylvania’s highest court took a step toward clarifying the sticky issue of school districts’ ability to discipline students for off-campus speech.


Manheim involved a challenge to a school district’s discipline of a student, J.S., after a meme he created was disseminated to a limited number of persons via the social media app, Snapchat.  The meme at issue, which J.S. initially sent via Snapchat only to his friend, Student One, involved a photo of another student, Student Two, with the caption: “I’m shooting up the school this week.  I can’t take it anymore I’m DONE!”  While this meme was originally private, Student One subsequently posted it to his personal Snapchat “story,” where it was viewed by 20 to 40 other students before being removed by Student One at J.S.’s request.  Importantly, the meme was created and disseminated from J.S.’s personal phone, off school premises, and outside of school hours.

The school district became aware of the meme and permanently expelled J.S. for making terroristic threats and engaging in cyber-bullying in violation school district policies.  The school board’s adjudication was reversed on appeal by the Lancaster County Court of Common Pleas and allocatur was ultimately granted by the Pennsylvania Supreme Court as to the issue of whether the school district infringed J.S.’s First Amendment protections when it disciplined him.


After a thorough summation of First Amendment jurisprudence relevant to public schools’ regulation of student speech, including the United States Supreme Court’s recent opinion in Mahoney Area School District v. B.L. which made the Tinker substantial disruption test applicable to student’s off-campus speech, the Court established a two-part inquiry to be employed in determining whether a student’s speech is protected.  Under the first part of the inquiry, a court must determine whether the at-issue speech constitutes a “true threat” by examining the totality of the circumstances, including the content and context of the speech.  Amongst relevant factors cited by the Court in reaching this determination are (1) the language employed by the speaker; (2) whether the statement constituted political hyperbole, jest, or satire; (3) whether the speech was of a type that often involves inexact and abusive language; (4) whether the threat was conditional; (5) whether it was communicated directly to the victim; (6) whether the victim had reason to believe the speaker had a propensity to engage in violence; and (7) how the listeners reacted to the speech.  Under the second part of the inquiry, a reviewing court must determine whether the at-issue speech caused or foreseeably could cause a substantial disruption to the school environment.  An affirmative finding under either of the two inquiries renders the speech unprotected and thus confers the school district with the ability to regulate it.

The Court held that the school district’s discipline of J.S. was not justified under either prong of the inquiry.  The Court found relevant to its true threat analysis that the meme was not a direct threat of violence against Student One, but rather “a fictional message of a third party threatening violence;” was part of an ongoing dialog between J.S. and Student One not intended to be shared with others; and was communicated through Snapchat, which conveys messages which cannot be accessed from the Internet and can only be viewed for a short time.

The Court also found that the meme did not cause a substantial disruption to the school environment.  While noting that the meme had an indirect nexus to the school by virtue of its suggestion that a student would “shoot up” the school and that this nexus “counsels strongly in favor of school regulation,” the Court continued to find that the school district’s interest in punishing J.S. was diminished by the fact that J.S. communicated the meme via his personal cell phone, off campus, on his own time, through Snapchat, and to an intended audience of one.  Furthermore, the facts that meme caused the school campus to be “abuzz,” caused apprehension amongst some students, parents, and faculty, resulted in an investigation by the administration and local police to determine if the threat was real, and caused Student One and Student Two to lose educational time due to their being interviewed, did not constitute such a significant impact on the delivery of instruction or administrative burdens to serve as a basis to expel J.S.


The primary take away of Manheim, is that a school district may permissibly regulate student speech, even that which occurs off school premises and outside of school hours, if the speech either (1) constitutes a “true threat” under the totality of the circumstances or (2) causes, or foreseeably could cause, a substantial disruption to the school environment.  While school districts will face a heightened burden when the at-issue speech occurs outside of school, this circumstance alone does not foreclose the school district’s ability to discipline students for their off-premises speech.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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