A U.S. appeals court on Wednesday said a Colorado high school student’s antisemitic post on Snapchat was not disruptive enough to justify his expulsion, and revived his lawsuit accusing the school district of violating his free-speech rights.
A unanimous three-judge panel of the Denver, Colorado-based 10th U.S. Circuit Court of Appeals said that all the Cherry Creek School District could point to in defending its expulsion of the student identified as C.G., who made the post off-campus, were a few emails from concerned parents and its own decision to hold a special assembly on the incident.
That is far from the “substantial disruption” of school activities required by the U.S. Supreme Court in order for public schools to discipline students over off-campus speech, the 10th Circuit said.
The Supreme Court last year in Mahanoy Area School District v. B.L. ruled in favor of a Pennsylvania teen who sued after a profanity-laced social media post got her banished from her high school’s cheerleading squad. The court extended its landmark 1969 decision in Tinker v. Des Moines Independent Community School District that created the “substantial disruption” test for on-campus speech to speech made off campus, including on social media.
Wednesday’s case was the first involving a student’s off-campus social media post to reach a federal appeals court since then.
A lawyer for C.G. did not immediately respond to a request for comment. Nor did lawyers for the school district.
C.G. in 2019 posted a photo on Snapchat of his friends wearing World War Two-era military hats at a thrift store, with the caption “Me and the boys bout to exterminate the Jews,” according to court filings. He removed the photo within hours and posted an apology, but was ultimately expelled.
A Colorado federal judge dismissed C.G.’s lawsuit against the school in 2020, saying the potential for the post to cause disruptions on campus trumped his free-speech rights under the 1st Amendment of the U.S. Constitution. Cherry Creek claimed at least four parents complained and the post was widely circulated throughout the local Jewish community.
C.G. appealed and the 10th Circuit on Wednesday reversed. Last year’s Supreme Court decision made clear that in order to punish off-campus speech, including on social media, schools must show that it created actual significant disruptions or was likely to do so, and Cherry Creek failed to do that, the court said.
