A.N. ex rel. Niziolek v. Upper Perkiomen School District

Citations: 228 F. Supp. 3d 391; 2017 U.S. Dist. LEXIS 3256; 2017 WL 85387Docket: CIVIL ACTION NO. 16-6433

Court: District Court, E.D. Pennsylvania; January 9, 2017; Federal District Court

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A.N., a 15-year-old student from the Upper Perkiomen School District, alleges that his First and Fourteenth Amendment rights to free speech were violated when the school disciplined him for a mash-up video he posted on a private Instagram account. This video combined a public service announcement about recognizing warning signs of teen gun violence—produced by Sandy Hook Promise—with the song "Pumped Up Kicks," which contains themes of youth violence. A.N. claims his mash-up did not reference any specific school or include threatening language, arguing it was intended to ridicule the original video, which he felt insufficiently conveyed the signs of a potential school shooter.

Defendants, including the School District and various administrators, are seeking to expel A.N. for this post. A.N. has filed an Emergency Motion for Preliminary Injunction to compel his immediate readmission to school, which the Court has denied following an evidentiary hearing. The private Instagram account, named "upperperk-iscool," was created by A.N. and friends to mock others and maintain anonymity, primarily attracting fellow students from the district as followers.

On December 4, 2016, at approximately 8:00 p.m., A.N. anonymously posted a mash-up video on the upperperkiscool Instagram page, captioned "See you next year, if you're still alive." The post raised alarms among other users, primarily students from the School District, leading to concerns that it constituted a threat. Two students commented on the post, with one privately asking A.N. if it was a "legit school shooting threat," to which A.N. denied it was a threat before deleting the post, which had been viewed 45 times in less than two hours. A.N. had also deleted the video from his device prior to removing it from Instagram.

S.N., a concerned parent, emailed Dr. Carpenter about the alarming nature of the post, which she interpreted as threatening. J.M., another parent, saw a screenshot of the post and found it alarming enough to report to the Pennsylvania State Police, who arrived at her home around midnight. The police officer contacted Dr. Carpenter early on December 5, 2016, to report the threat, leading Dr. Carpenter to notify Dr. McGloin. A failure to identify A.N. from the profile picture led to the wrong identification of another student. Dr. McGloin stated that police were unable to secure a warrant for the Instagram account due to the timing and that the anonymity of the poster made it difficult to assess the threat's validity.

Ultimately, Dr. McGloin decided to close the School District after consulting with Dr. Carpenter and law enforcement, as well as reviewing the police report and not being able to identify the source of the perceived threat. This decision resulted in the cancellation of classes and public school buses, and notifications were sent out to schools and parents.

Later, at around 6:30 a.m. on December 5, A.N. emailed Dr. McGloin, acknowledging the seriousness of the situation and the fear it caused among viewers. However, he did not identify himself as the post's creator or reassure Dr. McGloin that it was not a threat, and he admitted to intentionally misleading her in his email.

Dr. McGloin reported A.N.'s email to the police on December 6, 2016, leading to a visit from the Pennsylvania State Police, during which A.N. and his parents voluntarily surrendered A.N.'s phone and computer for forensic examination. The police did not search the Plaintiffs' items and concluded A.N.'s actions did not constitute terroristic threats, closing the case against him. Following the incident, the School District suspended A.N. and is seeking to expel him, restricting his access to school grounds and activities. A.N. had no prior disciplinary record.

On December 15, 2016, A.N. and his parents filed a Complaint against the School District under 42 U.S.C. §§ 1983 and 1988, claiming the suspension violated his First and Fourteenth Amendment rights. They also filed an Emergency Motion for Preliminary Injunction to allow A.N. to return to school and halt the expulsion process. An evidentiary hearing took place on January 3, 2017, with testimonies from various witnesses.

The standard for granting a preliminary injunction requires the movant to demonstrate: 1) a likelihood of success on the merits; 2) irreparable harm; 3) greater injury from denial of relief than the defendant would suffer; and 4) that the injunction serves the public interest. The plaintiff contends he meets these criteria by arguing that A.N.’s off-campus speech was protected under the First Amendment, as it could not be perceived as a true threat and would not cause substantial disruption. In contrast, the defendants argue that A.N.’s speech is not protected under the Tinker standard, asserting that the School District acted within its authority. The Court ultimately finds that the plaintiff has not demonstrated a likelihood of success on the merits of his claim regarding free speech protection.

The First Amendment protects speech in adult public discourse, but students' rights in public schools are not equivalent to those of adults. Students maintain some First Amendment rights at school, but these rights are evaluated within the context of the school environment. It remains ambiguous whether to analyze in-school and out-of-school speech identically.

In-school speech is assessed under the Tinker standard, which allows schools to restrict speech that materially and substantially disrupts school operations. Speech is not protected if it could reasonably lead school authorities to anticipate significant disruption, requiring a specific fear of disruption rather than vague concerns. Thus, Tinker safeguards expressive speech that does not disrupt or threaten to disrupt school activities.

For out-of-school speech, while the Supreme Court has not directly applied Tinker, most Circuit Courts have. In Snyder, the Third Circuit indicated that off-campus speech is also protected unless it causes actual disruption or could reasonably foreseeably disrupt the school environment.

In applying Tinker to the case of A.N., the Court will consider whether A.N.’s off-campus speech was protected. The determination hinges on whether the School District can demonstrate that A.N.’s speech materially disrupted the school or could have reasonably led to such disruption. The parties disagree on the impact of A.N.'s Instagram post, with A.N. claiming that a mischaracterization, not his speech, caused the disruption. However, evidence suggests that A.N.’s speech likely did cause disruption, making the School District’s response reasonable given the circumstances. As a result, A.N. is unlikely to prevail in his First Amendment claim, and injunctive relief is not warranted if his speech was indeed disruptive.

A.N.’s social media post caused a significant disruption at school, distinguishing it from the cases of Snyder and Layshock, where no substantial disruption occurred. In Snyder, the court found the student's speech nonsensical and thus not credible enough to cause disruption, while Layshock did not address whether the speech caused a disruption at all. In contrast, A.N.’s post led to immediate reactions from students, parents, and school officials, resulting in police involvement and school closures. The mash-up video A.N. posted, which included threatening lyrics and violent imagery, prompted concern among students and parents, with inquiries about its credibility and reports made to school authorities and law enforcement. The school district's swift response, including closing schools and consulting police, underscored the seriousness of the situation. A.N.’s argument that others mischaracterized his speech was undermined by the context and nature of his post, which was directed at school students and posted anonymously. Consequently, the school’s disciplinary actions were justified and did not infringe upon A.N.’s First Amendment rights, thereby failing to meet the requirements for a preliminary injunction.

A.N.’s social media post reasonably led the School District officials to anticipate a significant disruption or material interference with the school environment, justifying their disciplinary actions and decision to close schools. Despite a lack of confirmed threat, Dr. McGloin acted to ensure student safety, drawing on the context of nationwide school shootings. The court referenced R.L. v. Cent. York Sch., where a student's social media post led to suspension due to its potential to disrupt school activities, affirming that a well-founded expectation of disruption validated school officials' responses without violating First Amendment rights. A.N.’s claim that officials did not see his post and that the closure was unrelated to his speech was deemed irrelevant, as the officials perceived the post as a safety concern. Dr. McGloin’s decision was characterized as prudent and timely, reflecting a reasonable fear of disruption given the circumstances, including the anonymity maintained by A.N. after deleting the post. The court emphasized the importance of taking any suggestion of a threat seriously, aligning with precedents that uphold schools' authority to act in the interest of safety.

A.N. argued that his social media post was not a threat but intended to ridicule another student, Evan. However, the court determined that A.N.’s intent was irrelevant under the Tinker standard. The post was deemed likely to cause a substantial disruption in the school environment, justifying the School District's disciplinary actions without violating A.N.'s First Amendment rights. Consequently, A.N. failed to satisfy the first element of the preliminary injunction test, and the court did not need to evaluate the remaining elements. The court denied A.N.’s Emergency Motion for Preliminary Injunction. 

The excerpt also references the legal precedent set by Tinker v. Des Moines, which protects student speech unless it falls into specific categories—such as lewdness, school sponsorship, or advocating illegal drug use—none of which applied to A.N.’s case. Comparisons are made to other cases, including Doninger, Kowalski, Bell, and D.J.M., which upheld school discipline for student speech that posed a risk of disruption.

The court held that a school's disciplinary action against a student for sending threatening instant messages regarding a planned school shooting was justified under the Tinker standard, which assesses student speech in relation to school safety. Citing past incidents of violence in the school district, the court determined that the student's speech was unprotected and that the plaintiff was unlikely to succeed on the merits of his claim. The public interest favored denying a preliminary injunction, as granting it would hinder the school's ability to ensure student safety and could encourage disruptive, unprotected speech. The court emphasized that in equity, the potential public consequences of issuing an injunction must be carefully considered, ultimately concluding that denying the injunction would better serve the public interest by maintaining safety and preventing disruptions.