When you’re 15, you probably like to make jokes. Sometimes (or most of the time, if you’re me), your jokes are bad. A Philadelphia high school student might be paying for a “joke” gone awry – with expulsion.
A 15 year-old student at the Upper Perkiomen school district in Philadelphia mashed up the Sandy Hook Promise’s viral “Evan” video and Foster the People’s 2011 hit “Pumped Up Kicks” (that jaunty pop song that’s actually about a mass shooting) on a private, “vigilante” Instagram account called” “@upperperkiscool” the night of Dec. 4, 2016.
The video came with a caption reading “See you next year, if you’re still alive.” The student says it was intended as a joke.
Two school district students, alarmed, commented on the post. One asked if it was a “legit school shooting threat.” A parent of a student emailed Robert Carpenter, the Upper Perkiomen High School principal, to inform them of the video. Another notified the Pennsylvania State Police, who called Carpenter.
Carpenter and Superintendent Alexis McGloin worked all night with law enforcement and came to the conclusion that school should be cancelled the next day, and that’s what happened. Pennsylvania State Police investigated and determined the student’s actions “did not satisfy the elements of the crime of terroristic threats.”
Now, the school has suspended, and wants to expel, the student who made the post, referred to in court documents as “A.N.”
A.N.’s parents responded to the expulsion with a lawsuit on Dec. 15, alleging the school was infringing upon A.N.’s First Amendment rights, on the basis that no direct threat was made, and that the video was created off-campus.
“The First Amendment must be read to protect the out-of-school speech of minors – even, and perhaps especially, on topics as important and fraught as mass school shootings,” the family’s lawyer, Michael Raffaele, said in an email.
On Tuesday, a judge in the United States District Court of Eastern Pennsylvania struck down a petition from the plaintiffs requesting that he be allowed to return to school. This decision could allow the school to expel A.N. The document says “denying the injunction will further the public interest in maintaining safety and preventing disruptions to the school environment.” In other words, in the opinion of the judge, the off-campus post fails the Tinker test.
The U.S. Supreme Court decided students had substantial First Amendment protection for lawful and non-disruptive speech in Tinker v. Des Moines Independent Community School District, a landmark decision that has informed student free expression cases ever since.
To be clear: mass murder isn’t a laughing matter. The “joke” was terrible, and the students and parents involved were right to be concerned over it. However, the decision to expel A.N. sets a worrying precedent for cases like this in the future.
Court documents show A.N. has never landed in trouble at the school before and deleted the post two hours after its creation. It was a dumb take on a meme (mocking the “Evan” video by mashing it up with footage of other things) that was viewed a total of 45 times and led to students and teachers missing a whole day of school.
But the post didn’t explicitly mention Upper Perkiomen, and the video was uploaded off of school grounds. It’s hard to justify expulsion over a joke that got out of hand, from a student with no history of violence and, as school authorities satisfied themselves, no actual plan to do harm.
In immediately switching to the nuclear option, Upper Perkiomen is delegitimizing actions it might want to take in the future. If A.N. gets the strongest disciplinary action available, then how would the school district punish someone who made a real threat? Someone who actually brings a Ruger to school?
Someone did bring a Ruger to Upper Perkiomen High School in 1993. A student paid for it with his life. The district is right to take anything that might be a semblance of a threat seriously by investigating it and determining whether a “true threat” exists (“true threats” being a recognized category of constitutionally unprotected speech).
However, bringing the expulsion hammer down on a student’s head misses the opportunity for a constructive, inclusive conversation about how students can handle these topics. Do videos like “Evan” do their intended job of starting these conversations? What perspective can current students – not administrators or experts – bring to this issue?
To begin solving the scourge of mass shootings requires first having the ability to talk about it, and that can’t happen if administrations are expelling anyone who chooses to open a dialogue, even if the attempt is clumsy and ill-informed.
Raffaele says the family is considering their options, but is confident an appeal would be thoroughly considered by the Third Circuit U.S. Court of Appeals. In his words:
“Punishing Plaintiff thus does not advance or protect students’ safety. Nor, as a general matter, does punishing speech about difficult topics.”