Byron R. White U.S. Courthouse for the 10th Circuit

FILE PHOTO: The Byron R. White U.S. Courthouse in Denver, which houses the Court of Appeals for the 10th Circuit.

Three federal judges appeared to believe on Wednesday that a Cherry Creek High School student who was expelled in 2019 over an offensive Snapchat message had plausibly claimed that the school officials' discipline infringed on his free speech rights.

A panel of the U.S. Court of Appeals for the 10th Circuit heard oral arguments in Denver over whether to reinstate the First Amendment lawsuit of a student identified only as C.G. Previously, a lower court judge dismissed C.G.'s claims, but while the appeal was pending the U.S. Supreme Court issued a major new decision about students' free speech rights off campus.

In a case very similar to C.G.'s, the Supreme Court held last year that school districts may regulate children's speech off school property or outside of school activities, but there are guardrails that limit when such infringements are allowable.

That decision, coupled with the Supreme Court's prior determination that students' speech is not protected when it creates a "substantial" disturbance, led the 10th Circuit judges to wonder whether Cherry Creek School District overreacted by expelling C.G. for his Snapchat message.

"Classes were not suspended. There were no demonstrations," said Senior Judge Paul J. Kelly Jr. "There were several conferences held by the administrators discussing it. Other than that, school went on as normal."

According to the lawsuit, C.G., a junior in high school, was at a thrift store with three friends on Sept. 13, 2019. The children were trying on hats, one of which resembled World War II-era headgear. C.G. took a picture of the other three, and captioned it "Me and the boys bout to exterminate the Jews." He posted it as a Snapchat story on that Friday night.

The text was a reference was to an Internet meme, but when one of his Snapchat friends saw the private post, she showed it to her father. The man called police and allegedly "spread it to others in the Jewish community."

The Arapahoe County Sheriff's Office concluded that no crime had occurred. Although Snapchat messages are designed to delete themselves fairly quickly, C.G. took down the story and posted an apology, saying it was supposed to be a joke.

The Sunday after the Snapchat message, a parent contacted Cherry Creek School District officials, arguing that the image created "fear, anger and sadness" for him and his student. He alleged his son was concerned about returning to school.

"When an incident happens off campus, we have to make sure there is a nexus to the school," Principal Ryan T. Silva responded, assuring the parent that "we can address the matter."

On Monday, C.G. returned to school. Security reportedly met C.G. in class and brought him to an administrator's office. C.G. learned he was receiving a five-day suspension for violating district policy, even though the policies applied to "activities while in school buildings, on school grounds, in school vehicles, or during a school sponsored activity." 

That same day, Silva sent an email to Cherry Creek High School families informing them of "an anti-Semitic social media post made over the weekend." The school then used an advisory period to let teachers and students discuss the impact of hate speech.

On Sept. 18, C.G.'s suspension was extended by five more days to review the possibility of expulsion. The suspension received another 11-day extension, all while the school reportedly refused to meet with C.G.'s parents. Ultimately, a hearing officer found C.G. violated school policies and recommended expulsion. On Oct. 21, the district's superintendent expelled C.G. for one year, and the school board upheld his decision.

The two sides in C.G.'s lawsuit had differing interpretations about the meaning behind the free speech case.

"We are here today because a 15-year-old's juvenile attempt at dark humor, posted to his private social media page on a Friday night away from school, resulted in his expulsion," Jamie Hubbard, C.G.'s lawyer, told the 10th Circuit panel.

"This case," countered Jonathan Fero for the district, "is about a school district's ability to maintain a safe and effective learning environment in the social media age, free from substantial disruption and harassment."

In August 2020, U.S. District Court Senior Judge R. Brooke Jackson agreed to dismiss the lawsuit. The Supreme Court and the 10th Circuit had not weighed in about what free speech rights students have off campus. Therefore, Jackson opted to rely on Tinker v. Des Moines Independent Community School District, a Vietnam War-era Supreme Court decision that held schools could regulate in-school speech that substantially disrupted schoolwork or led to disorder.

"The modern reality of social media is that off-campus electronic speech regularly finds its way into schools and can disrupt the learning environment," Jackson wrote. "Applying Tinker to off-campus speech properly protects both students’ constitutional rights and the evolving nature of 'the school environment'." 

Ten months after Jackson dismissed the case, the Supreme Court decided Mahanoy Area School District v. B.L.which directly addressed the First Amendment protections for students off campus. In that case, out of Pennsylvania, student Brandi Levy similarly posted an offensive Snapchat message outside of school. The message expressed frustration that she failed to make the varsity cheerleading squad. The school responded by suspending Levy from the junior varsity team.

The Supreme Court agreed by 8-1 that Levy's school violated her rights, but suggested that schools could regulate off-campus speech pertaining to severe bullying, harassment and academic violations that all involve substantial disruption.

Fero, the attorney for Cherry Creek School District, explained to the 10th Circuit panel that the school was correct to forecast disruption because of media attention, messages from families and time spent discussing hate speech in the advisory period that ultimately ensued. Some judges, however, saw the school district itself as creating the disruption.

"At the time of the initial suspension, as I understand the facts, there had only been one family that had contacted the school and complained," observed Judge Carolyn B. McHugh. "I guess it leaves us with the question: If the school hadn't further disseminated this issue by sending every family in the school district (an) email, whether they still would have been talking about it a week later?"

Judge Scott M. Matheson Jr. asked whether the district had any evidence of "classroom disruption" from C.G.'s Snapchat story. 

"Over the weekend? No, school was not in session," Fero responded.

"That's what I'm saying. Where was the disruption?" Matheson demanded.

The panel members were also interested in the claim C.G. leveled against the school for violating his due process rights.

Administrators "had already made the decision, apparently before any hearing for this person," said Kelly. "They didn't give him an opportunity to come in and explain how dumb he may have been and he was sorry and he had taken the post down immediately and apologized to everybody. They didn't give him an opportunity to do anything."

C.G.'s lawsuit asks for a court to order the school district to rescind its disciplinary action, readmit him and cease from enforcing any unconstitutional policies. He also seeks monetary damages. A ruling in C.G.'s favor from the appellate panel would reinstate the lawsuit.

The ACLU of Colorado weighed in on C.G.'s behalf to the 10th Circuit. The organization argued that Jackson was wrong to apply on-campus speech restrictions to off-campus expression, and that schools cannot discipline speech merely for being "dumb" or "offensive."

"Extending it off campus would mean that students never get to have more freedom to speak than they do in the classroom or at recess," said the ACLU's Vera Eidelman. "It would put protests, op-eds — just the ability to be a kid — at risk."

The case is C1.G. v. Siegfried et al.

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