Fight over Colorado teen’s expulsion for posting antisemitic content is a tussle over two Supreme Court precedents

---

A public high school student posted an antisemitic Snapchat story and was expelled for a year. The student’s parents sued the school, claiming it had violated their son’s Free Speech and due process rights.

Key Players

Identified as C.G., the student in question was 15 years old in the fall of 2019, when the incident occurred. 

Cherry Creek High School (CCHS) is a public school in Greenwood Village, Colorado, a suburb of Denver. The school has an enrollment of about 3,800 students, making it one of the largest in the Denver area.

Further Details

On Sept. 13, 2019, C.G. went to a thrift shop with several friends, where they found a hat that, according to a Colorado Politics report, “resembled World War II-era headgear.” C.G. took a photo of his friends and the hat and posted it on his Snapchat story with the caption, “Me and the boys bout to exterminate the Jews.”

After seeing the post, one of C.G.’s friends on the social media platform took a screenshot of the image and shared it with her father, who called the police. Officers responded to C.G.’s home, where they determined he posed no imminent criminal threat, Education Week reported. 

The Arapahoe County Sheriff’s Office confirmed no crime had been committed. However, C.G. deleted the post just two hours after posting it. He also posted an apology, saying the post was meant as a joke, according to Colorado Politics.

Despite this, screenshots of the picture spread through both the high school and the local Jewish community, Reuters reported. 

On Sept. 15, 2019, a parent contacted the school saying the image had caused “fear, anger and sadness” and that his son was concerned about returning to school.

The following day, CCHS collaborated with the Anti-Defamation League to develop a response to the incident, The Denver Post reported. Principal Ryan Silva sent a letter to families that read in part, “Cherry Creek High School does not tolerate hateful speech or actions. Our responsibility is to keep students safe and to provide a place where students of every race, ethnicity, religion, gender and sexual orientation feel safe, valued and supported.” 

The Post also reported that the three other students told school officials they were unaware of the caption written by C.G. Cherry Creek School District spokesperson Abbe Smith told The Post she was unable to comment on an ongoing disciplinary matter. 

C.G. was told by school officials that he had been suspended for five days. This decision was reached despite the school code of conduct applying only to “activities while in school buildings, on school grounds, in school vehicles, or during a school sponsored activity” according to Colorado Politics. 

Administrators at the school extended C.G.’s suspension several times, then decided on Oct. 21, 2019, to expel him for a year. The school board reviewed the decision and confirmed it, on the grounds that they are responsible for “behavior on or off school property which is detrimental to the welfare, safety or morals of other students or school personnel,” the Sentinel reported.

Later that year, C.G.’s parents sued the school district and several school administrators. In August 2020, U.S. District Judge R. Brooke Jackson, nominated by former President Barack Obama, dismissed the lawsuit. Jackson wrote in his opinion that “the school did have authority to discipline C.G. for his Snapchat post referencing ‘exterminat[ing] the Jews,’ rejecting C.G.’s First Amendment claim. Importantly, Jackson found that the public outcry and anger felt by students and families met the standard of “materially and substantially interfer[ing]” set by the 1969 U.S. Supreme Court decision in Tinker v. Des Moines Independent Community School District. 

The judge also ruled that C.G. had not been denied due process and was not entitled to appeal his expulsion under school policy. 

However, in June 2021, the Supreme Court, in an 8-1 decision in Mahanoy Area School District v. B. L., ruled that in the absence of a significant disturbance to school proceedings, schools are limited in how strictly they can police off-campus speech. In the majority opinion in that case, Associate Justice Brett Kavanaugh, nominated by former President Donald Trump, wrote that, “Because B. L.’s speech took place off campus … the Tinker standard did not apply and the school consequently could not discipline B. L. for engaging in a form of pure speech.”

In light of the Mahanoy decision, C.G.’s family moved to appeal their case to the 10th U.S. Circuit Court of Appeals in September 2021, Courthouse News Service reported. 

The case was heard by a three-judge panel of the 10th Circuit in May 2022. While the presence of violent language was discussed as a disruptive force, C.G.’s legal team pointed out that there were no reports of families expressing a fear of violence, nor did C.G. threaten to perpetrate a violent act on school grounds. 

The panel also seemed skeptical of the argument that school activities were disrupted, noting that the post was shared on a Friday night, and classes began without delay or interruption the following Monday. The only disruption caused, it was suggested, was the calling of “a few conferences” attended by school officials.

Outcome

Appellate court sides with C.G., returns case to lower court

On July 6, 2022, the appellate judges unanimously overturned  the lower court’s dismissal of the lawsuit and sent it back to Jackson to decide whether officials of Cherry Creek High School and of the school district were entitled to qualified immunity, which protects government employees from liability unless they act in a clearly unreasonable way.  In the opinion of the court, Circuit Judge Paul J. Kelly Jr., nominated by former President George H. W. Bush, wrote that under the new precedent set under Mahanoy, CCHS “violated C.G.’s First Amendment rights by disciplining him for his post.” 

In January 2023, Jackson ruled that the individual school and district officials who had been sued by C.G. were protected by qualified immunity. But the school district itself remained a defendant in the case. 

Jackson also wrote that he believed C.G.’s First Amendment rights were not clearly established when he was disciplined, and that the Supreme Court’s recent precedent in the Mahanoy case might not have dictated the outcome reached by the 10th Circuit. Jackson’s stated views were not a ruling on the central issues of the case, however, as only the qualified immunity question was before him at the time.

As of July 31, 2023, the case is still pending. Both sides are conducting discovery, according to a lawyer for the school district, and a trial date has not yet been set.