A federal appeals court has reversed the discipline of a New York state high school student over an off-campus social media post that mocked the 2020 death of George Floyd in the custody of Minneapolis police officers.
While the student’s post was “ill-advised” and “offensive,” schools “cannot—and should not—protect the school community from hearing viewpoints with which they disagree or engaging in discourse with those who have offended them,” said a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, that was unanimous in its bottom-line judgment.
The decision in Leroy v. Livingston Manor Central School District wrestles with and provides guidance on a number of challenges that schools across the country are facing—how and whether to address student speech on social media, speech that provokes a community reaction and may disrupt school, and speech that some students find offensive or may perceive as targeting them.
The case involves Case Leroy, who was a senior at Livingston Manor High School in upstate New York in the spring of 2021 when he posed with another student’s knee on his neck. He added the caption “Cops got another” when posting the photo on Snapchat.
The student in the photo with his knee on Leroy’s neck, who is unidentified, also posted the photo and added the Black Lives Matter logo and the phrase, “Another one down.”
This was the year after Floyd’s death had prompted a racial reckoning in the United States and was posted at a time when a jury was deliberating in the trial of police officer Derek Chauvin, who held his knee to Floyd’s neck as bystanders recorded the encounter and unsuccessfully pleaded for Chauvin and other officers to stop. Floyd died, and Chauvin was convicted of murder and manslaughter.
Leroy quickly took down his post, but not before it had spread among students and others in the community, which led to complaints to school officials, classroom discussions, an assembly, and an outdoor demonstration in which students kneeled in memory of Floyd.
Leroy was initially suspended for five days as the Livingston Manor Central school district conducted an investigation and held a disciplinary hearing. Administrators determined that Leroy violated the student code of conduct by posting “racially offensive material.” His suspension was extended for several weeks and he was barred from extracurricular activities for the rest of his senior year, including the prom and graduation.
He was allowed to return to school before the suspension was scheduled to end after he agreed to participate in any restorative justice or diversity, equity, and inclusivity training opportunities that were offered. (It’s unclear whether he ever did so.)
Leroy sued in New York state courts, and won an injunction to attend his graduation, before the school district successfully pushed to move the case to federal court. A federal district judge upheld the discipline, ruling that Leroy’s posts were not protected by the First Amendment because of the “substantial disruption” they had caused at school.
School’s interest in racial sensitivity not enough to curb free speech protections, court says
In its Oct. 30 decision, the 2nd Circuit panel reversed the district court and ruled for the student.
The panel majority applied the U.S. Supreme Court’s 2021 decision in Mahanoy Area School District v. B.L., which said schools could punish off-campus bullying or threats targeting specific individuals but that they have “diminished” leeway for generally regulating students’ off-campus speech.
“We conclude that Leroy’s off-campus speech fell outside the bounds of the school’s regulatory authority,” said the opinion by Judge Barrington D. Parker, an appointee of President George W. Bush. “We cannot accept the contention that in today’s world, a social media post made off-campus is equivalent to speech on campus.”
And the school’s interest in preventing racially insensitive speech was weakened by the fact that Leroy’s speech occurred off-campus, the judge said.
“Livingston Manor’s interest in teaching racial sensitivity is not sufficient to overcome Leroy’s interest in free expression off-campus,” Parker said.
The court further concluded that the degree of disruption at the high school was not sufficient to support the student’s discipline. While the spread of the image led to discussions and an assembly, some of the response was based on the decisions of others, Parker said, and not by any intention by Leroy to disrupt school.
Finally, the court rejected the school district’s rationale that it could punish offensive speech.
“The ability to engage in civil discourse with those with whom we disagree is an essential feature of a liberal education,” Parker said. “Teaching students that they can and should be sheltered from speech that offends them is not.”
Judge Myrna Pérez, an appointee of President Joe Biden, wrote a concurrence that agreed with the judgment that Leroy’s punishment was “severe” and inconsistent with the First Amendment. But she said schools may have more leeway than the majority suggests to make sure students “learn without fear.”
“Learning can … be disrupted if students believe their classmates will callously cheer on or condone their being harmed outside of their schools,” Pérez said.
The majority’s opinion should not be understood to preclude schools from punishing off-campus student speech if it “makes students feel unsafe and deprives them of the ability to learn and participate as equal members of their public-school community, if the speaker intends or is reckless as to that result.”
