From C1.G v. Siegfried, decided yesterday—correctly, I think—by the Tenth Circuit (Judge Paul Kelly, joined by Judges Scott Matheson & Carolyn McHugh):
On the evening of Friday, September 13, 2019, C.G. was off campus at a thrift store with three friends. He took a picture of his friends wearing wigs and hats, including "one hat that resembled a foreign military hat from the World War II period." on the social media platform Snapchat and captioned it, "Me and the boys bout [sic] to exterminate the Jews." C.G.'s post (the photo and caption) was part of his private "story," an online feed visible only to Snapchat users connected with C.G. on that platform. Posts on a user's Snapchat story are automatically deleted after 24 hours, but C.G. removed this post after a few hours. He then posted on his Snapchat story, "I'm sorry for that picture it was ment [sic] to be a joke."
One of C.G.'s Snapchat "friend[s]" took a photograph of the post before C.G. deleted it. {"Friends" on Snapchat are users who have connected on the platform and can therefore see one another's "private" stories.} She showed it to her father, and he called the police, who visited C.G.'s house and found no threat. Referencing prior anti-Semitic activity and indicating that the post caused concern for many in the Jewish community, a CCHS parent emailed the school and community leaders about the post.
C.G. was expelled for a year, for violating school district policies:
(1) JICDA(13) prohibiting verbal abuse in a school building or on school property (overruling the hearing officer's finding that JICDA(13) did not apply);
(2) JICDA(19) regulating "behavior on or off school property which is detrimental to the welfare, safety or morals of other students or school personnel";
(3) ACC-R prohibiting intimidation, harassment, or hazing by directing an obscene comment or gesture at another person or insulting or challenging another person or by threatening another person; and
(4) JKD-1-E, which allows for suspension, expulsion or denial of admission for behavior on or off school property that is detrimental to the welfare or safety of other pupils or of school personnel including behavior that creates a threat of physical harm.
The court, though, held that this violated the First Amendment:
Schools may restrict student speech only if it "would substantially interfere with the work of the school or impinge upon the rights of other students." A school can also regulate student speech where it reasonably forecasts such disruption. "[S]pecial characteristics call for special leeway when schools regulate speech that occurs under its supervision." Mahanoy Area Sch. Dist. v. B.L. (2021). But in considering student speech that occurs off campus and is unconnected to any school activity, a school: (1) can "rarely stand in loco parentis"; (2) "will have a heavy burden to justify intervention" when political or religious speech is involved; and (3) must especially respect "an interest in protecting a student's unpopular expression."
The Mahanoy Court "d[id] not … set forth a broad, highly general First Amendment rule stating just what counts as 'off campus' speech and whether or how ordinary First Amendment standards must give way off campus to a school's special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up a school community." Instead, it identified the above "three features of off-campus speech that often, even if not always, distinguish schools' efforts to regulate that speech from their efforts to regulate on-campus speech." … Mahanoy's framework for assessing school regulation of off-campus speech on social media controls our analysis here….
Defendants argue that C.G.'s post is uniquely regulable because it is "hate speech targeting the Jewish community" and "not just a crude attempt at a joke about the Holocaust." But offensive, controversial speech can still be protected. {[Nor was Plaintiff's speech within the "true threats" First Amendment exception: -EV] As Plaintiff pointed out at oral argument and in the Complaint, school officials apparently did not consider C.G. to have authored a threat. On the Monday morning following his post, C.G. drove himself to school, parked in the school parking lot, and walked past security to his first-period class with his backpack (which was not searched) before he was escorted to Dean Thomas's office.}
Like B.L., C.G.: (1) spoke "outside of school hours from a location outside the school"; (2) "did not identify the school in [his] post[ ] or target any member of the school community with vulgar or abusive language"; and (3) "transmitted [his] speech through a personal cellphone, to an audience consisting of [his] private circle of Snapchat friends." These characteristics of C.G.'s speech, "while risking transmission to the school itself, nonetheless … diminish the school's interest in punishing [his] utterance."
Further, like the school in Mahanoy, CCHS's possible interests in prohibiting C.G.'s speech would not defeat his First Amendment protections. Defendants argue that their disciplinary actions were appropriate because they "must consider the rights of other students to be free from harassment and receive an effective education." But the school cannot stand in loco parentis here. That doctrine applies "where the children's actual parents cannot protect, guide, and discipline them." Mahanoy is clear that schools may not invoke the doctrine to justify regulating off-campus speech in normal circumstances. Based on the Complaint, there is nothing abnormal in this case to prevent following this rule.
Next, CCHS argues that it had a reasonable expectation of substantial disruption (which it claims did in fact occur) and/or interference with other students' rights to access education under Tinker. {Defendants do not develop an argument for interference with other students' rights, so we address only their substantial disruption arguments.} First, Defendants provide the following reasons to support a reasonable forecast of substantial disruption regarding C.G.'s initial suspension: (1) that Principal Ryan Silva received emails about the post; (2) that the post had been widely circulated throughout the area's Jewish community; and (3) that the post had scared, angered, and saddened a family who said their son was worried about having a class with C.G. After the initial suspension, Defendants stress that: (1) Principal Silva sent a message to CCHS students, parents, and staff; (2) news outlets covered the incident; (3) three more parents contacted CCHS; and (4) CCHS used one advisory period to discuss C.G.'s post and promote conversation about harmful speech.
These facts do not support a reasonable forecast of substantial disruption that would warrant dismissal of the Complaint. CCHS only provides an email chain with one family. Principal Silva needed more to substantiate his "feel[ing] [that] the learning environment ha[d] been impacted.". Moreover, "impact[ ]" does not necessarily equal substantial disruption.
Defendants rely on West v. Derby Unified School District No. 260 (10th Cir. 2000), to claim that the school has expertise deserving of deference and that the context of previous anti-Semitic incidents at the school must be considered. {The record attests one previous incident: "the suspension of 3 students last December for threatening to use assault rifles to shoot the Jews.} But that case involved a student drawing a confederate flag on campus in a school district that had adopted a policy in response to previous racial incidents, some of which included confederate flags and the student in question. That case materially differs from this one because C.G. was off campus and Defendants lack documented context facilitating similar disciplinary action or previous, similar behavior by C.G.
Moreover, C.G.'s post did not include weapons, specific threats, or speech directed toward the school or its students. Thus, even pre-Mahanoy, this case materially differs from the five cases Defendants cite to prove that other circuits have applied Tinker to off-campus speech. Those cases all addressed specific threats directed at a school, its students, or its officials. Defendants cannot claim a reasonable forecast of substantial disruption to regulate C.G.'s off-campus speech by simply invoking the words "harass" and "hate" when C.G.'s speech does not constitute harassment and its hateful nature is not regulable in this context.
CCHS's argument that substantial disruption actually occurred is equally unconvincing. We cannot consider CCHS's choice to discuss C.G.'s post during an advisory period (a schedule block twice a week implemented specifically for dealing with such matters) substantial disruption. Neither can news reports nor four emails from parents be evidence of substantial disruption. These facts fall short of "Tinker's demanding standard."
Because CCHS cannot stand in loco parentis and the Complaint alleges no reasonable forecast of substantial disruption or actual disruption, Plaintiff has properly alleged that Defendants' discipline of C.G. for his off-campus speech is a First Amendment violation that cannot be dismissed at this stage.
Congratulations to Jamie Hubbard of Stimson, Stancil, LaBranche, Hubbard, L.L.C. and Andrew McNulty of Kilmer, Lane & Newman, L.L.P., who represented the plaintiff. I should also note that the ACLU, Cato, FIRE, and EFF filed amicus briefs in support of plaintiff.
Thanks to Alan Beck for the pointer.
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