Law & Courts

Appeals Court Revives Student’s Free Speech Suit Over Antisemitic Social Media Post

By Mark Walsh — July 08, 2022 3 min read
Image of a gavel
  • Save to favorites
  • Print

A federal appeals court has reinstated a free speech lawsuit brought on behalf of a Colorado high school student who was expelled after posting a joking reference to exterminating Jews in his Snapchat messages.

The appeals court said the U.S. Supreme Court’s decision last year, in a case involving a cheerleader’s vulgar messages on social media, that schools may not, in most circumstances, discipline off-campus student speech led to the conclusion that the Colorado student’s Snapchat message was likely protected under the First Amendment.

The three-judge panel of the U.S. Court of Appeals for the 10th Circuit, in Denver, unanimously reinstated the suit, though it also held in its July 6 decision in C1.G. v. Siegfried that school officials may be immune from personal liability because the state of the law regarding school authority over off-campus student speech was unclear when the incident unfolded in the fall of 2019.

The student identified in court papers as C.G. was at a thrift store with friends, trying on wigs and hats when one of his friends put on a hat that resembled a foreign military hat from World War II, court papers say. C.G. took a picture and posted it in a Snapchat message with the caption: “Me and the boys bout [sic] to exterminate the Jews.”

C.G. removed the post after two hours and said he was sorry about it and that it was meant as a joke. One of the student’s Snapchat friends took a photo of the snap before it was deleted and showed it to her father, who called the police. They visited C.G., but determined there was not a threat. But the image spread among the Cherry Creek High School community.

School officials suspended C.G. before expelling him for one year for violating a policy regulating “behavior on or off school property which is detrimental to the welfare, safety or morals of other students or school personnel.” That decision was upheld by the board of the Cherry Creek School District.

Meanwhile, C.G.’s parents provided the school district a letter indicating that their son had accepted responsibility for the offensive post and stating that he had recently spent time educating himself about Jewish history and talking with Jewish community members and advocacy groups.

The family sued the district and school officials, alleging that the student’s discipline violated the First Amendment as well as procedural due process protections of the 14th Amendment.

Appeals panel rejects arguments on hate speech and disruption at school

A federal district court dismissed the claims, ruling that the school district had the authority to discipline C.G. for his Snapchat post. But that decision came before the Supreme Court’s 2021 ruling in Mahanoy Area School District v. B.L.

In Mahanoy, the high court held that that a Pennsylvania school district violated the First Amendment when it punished a student for posting—while off-campus—a vulgar message on Snapchat expressing frustration about school and her cheerleading team. The court said schools did not act “in loco parentis” for students over their off-campus behavior, but that there would be circumstances when schools could regulate off-campus speech or behavior, such as with severe bullying or threats to teachers or schools.

In the new decision involving the Colorado student, the 10th Circuit court panel agreed with the family that last year’s Supreme Court decision had clarified the law in C.G.’s favor.

Mahanoy’s framework for assessing school regulation of off-campus speech on social media controls our analysis here,” the appeals court said.

Like cheerleader Brandi Levy’s speech in the Mahanoy case, “C.G.’s speech would generally receive First Amendment protection because it does not constitute a true threat, fighting words, or obscenity,” the court said.

The panel rejected the Cherry Creek district’s argument that C.G.’s post was uniquely subject to regulation because, as the district put it in court papers, it was “hate speech targeting the Jewish community” and “not just a crude attempt at a joke about the Holocaust.”

“[O]ffensive, controversial speech can still be protected” under the First Amendment, the 10th Circuit panel said.

The court also dismissed the school district’s claims that there was a reasonable expectation that the post would lead to disruption of school. While it was true that the principal received several emails about the post and it circulated through the Jewish community, the court said, “C.G.’s post did not include weapons, specific threats, or speech directed toward the school or its students.”

The decision also reinstated C.G.’s procedural due process claims regarding his suspension and expulsion. The appeals court sent the case back to federal district court for re-examination of several issues.

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Assessment Webinar
Reimagining Grading in K-12 Schools: A Conversation on the Value of Standards-Based Grading
Hear from K-12 educational leaders and explore standards-based grading benefits and implementation strategies and challenges
Content provided by Otus
Reading & Literacy Webinar How Background Knowledge Fits Into the ‘Science of Reading’ 
Join our webinar to learn research-backed strategies for enhancing reading comprehension and building cultural responsiveness in the classroom.
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Assessment Webinar
Innovative Strategies for Data & Assessments
Join our webinar to learn strategies for actionable instruction using assessment & analysis.
Content provided by Edulastic

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Supreme Court Rules Deaf Student Can Sue School District Over Alleged Failures
The justices rule that the Individuals with Disabilities Education Act does not bar the student's suit for money damages.
5 min read
Miguel Perez
Miguel Luna Perez, who is deaf, attended schools in Michigan's Sturgis Public School District from ages 9 through 20.
Photo courtesy of Luna Perez family
Law & Courts After 50 Years, a U.S. Supreme Court Decision on Educational Equity Is Still Debated
In a school finance case from Texas, the justices held that the wealth of districts was not subject to extra constitutional scrutiny.
12 min read
The U.S. Supreme Court is seen at near sunset in Washington, on Oct. 18, 2018.
The U.S. Supreme Court is seen at near sunset in Washington, on Oct. 18, 2018.
Manuel Balce Ceneta/AP Photo
Law & Courts Florida Law Requiring Gun Buyers to Be 21 Is Upheld
A federal appeals court said the Marjory Stoneman Douglas High School Public Safety Act is consistent with the Second Amendment.
4 min read
Audriana Lima, 14, a current freshman at Marjory Stoneman Douglas High School, visits a display of portraits of the 17 students and staff who were killed in a school shooting five years earlier, Tuesday, Feb. 14, 2023, at Pine Trails Park in Parkland, Fla. Family members, neighbors, and well-wishers turned out to multiple events Tuesday to honor the lives of those killed on Valentine's Day 2018.
Audriana Lima, 14, a current freshman at Marjory Stoneman Douglas High School, visits a display of portraits of the 17 students and staff who were killed in a school shooting five years earlier, Tuesday, Feb. 14, 2023, at Pine Trails Park in Parkland, Fla.
Rebecca Blackwell/AP
Law & Courts Opinion A Student Journalist's Plea: Stop Censoring Us (and Our Advisers)
High school newspaper staff deserve the same rights as professionals: to uncover wrongdoings and inform the public.
Serena Liu
4 min read
Image of a speech bubble behind yellow tape, a censorship concept
Vanessa Solis/Education Week + iStock/Getty Images