from not-exactly-‘fuck-cheer’, but-so-what-is-it? department

Another school learned that it cannot discipline students for off-campus behavior, particularly in light of the Supreme Court’s “fuck cheer” decision.

Teenagers do stupid things. Sometimes they do them at school and the school is free to punish them. Sometimes they do it somewhere else and that’s where the boundaries come in. That’s what the Cherry Creek School District was just told by the Tenth Circuit Court of Appeals. Her decision [PDF] overturns the lower court’s decision (given to the Supreme Court Mahanoy decision]and allows a student who told a really tasteless joke to continue to sue the district for expelling him.

The facts of the case aren’t great, at least in terms of this student’s (referred to as “CG” in the ruling) ability to discern what is or isn’t funny.

On the evening of Friday, September 13, 2019, CG was off campus at a thrift store with three friends. He took a photo of his friends wearing wigs and hats, including “a hat that looked like a foreign military hat from the WWII period.” CG posted this photo on social media platform Snapchat and captioned it, “Me and the boys fight [sic] to exterminate the Jews. CG’s post (the photo and caption) was part of his private “story”, an online feed visible only to Snapchat users logged into CG on that platform.

CG deleted the post a few hours later and posted a new post apologizing for the “joke”. But it was too late. One of his Snapchat “friends” took a screenshot of the post and showed it to his dad. Her father, for some reason, thought that warranted police involvement. The police visited CG, determined that there was no threat of extermination, and went about their business.

Another parent notified the student’s school, citing “previous anti-Semitic activity” (but not from this student!) and saying the message had “concerned many members of the Jewish community.” Whether or not these claims were factual is not discussed here, but the school decided to punish CG for his off-campus actions, suspending him for five days “while the school investigates.”

The investigation ended more than two weeks later (CG spent the entire time suspended) and the school expelled CG for a year, claiming the off-campus position violated school rules prohibiting the behaviors on or off campus” that are detrimental to the welfare or safety of other students or school personnel.

After being awarded a loss by the district court, CG appealed, citing the recent Supreme Court decision in the “fuck cheer” case. The district didn’t change its case at all, saying it didn’t violate CG’s rights by punishing him for off-campus behavior.

Defendants argue that CG was legally sanctioned for what amounts to off-campus hate speech. According to the defendants, although originating off-campus, CG’s speech still spread to the school community, disrupted the school’s learning environment, and interfered with the rights of other students to not to be harassed and to receive an education. Defendants also argue that CG received all due process.

The Supreme Court’s decision changed the legal framework slightly. And it’s changed enough that the school has nothing to stand on.

Mahanoy’s framework for assessing academic regulation of off-campus speech on social media controls our analysis here. In many respects and on the basis of the complaint, this case is materially similar. Like BL’s speech, CG’s speech would generally receive First Amendment protection because it does not constitute genuine threats, combat words, or obscenity. The defendants argue that CG’s post is regulated solely because it is “hate speech targeting the Jewish community” and “not just a crude attempt at a Holocaust joke.” But offensive and controversial speech can still be protected.

Like the Supreme Court’s decision, CG’s speech took place off-campus, was not targeted at any specific student or school staff, and was transmitted via CG’s phone to a small group of friends. Constitutional protections still apply and the school, despite all its presumed concerns, cannot circumvent those protections. Nor can he unilaterally decide to step in and dispense discipline that should be handled by a parent for behavior that occurred off campus.

The argument the Court of Appeals least likes is the school’s allegation that this Snapchat post caused (or could foreseeably have caused) “substantial disruption.” The district offers no evidence to support this assertion.

Defendants provide the following reasons to support a reasonable expectation of material disruption regarding CG’s initial suspension: (1) that Principal Ryan Silva received emails regarding the release; (2) that the message had been widely disseminated throughout the Jewish community in the area; and (3) that the message frightened, angered and saddened a family who said their son was worried about having a class with CG. After the initial suspension, the defendants point out that: (1) Principal Silva sent a message to CCHS students, and staff; (2) the media covered the incident; (3) three other parents contacted the ESCC; and (4) the CCHS used a consultation period to discuss CG’s message and promote conversation about harmful speech.

These facts do not support a reasonable expectation of substantial disruption that would justify the dismissal of the complaint. The CCHS only provides one family email chain.

The court follows this by telling the school that it cannot call protected speech unprotected simply because it chose not to respect the student’s rights.

Defendants cannot rely on a reasonable expectation of substantial disruption to regulate CG’s off-campus speech by simply invoking the words “harass” and “hate” when CG’s speech does not constitute harassment and its hateful nature is not not regulable in this context.

The trial continues. The Court of Appeals says free speech rights still exist for students and schools are limited in how and when they can punish off-campus speech. The Court of Appeals also said that calling a student to a meeting simply to tell them they were suspended is unlikely to meet due process standards, given that the student was never given the opportunity to speak in his own name.

There is also an unresolved question of qualified immunity. Whether or not this right has been clearly established will be discussed when he returns to the district court. It may seem open and closed, given that the profusely quoted Supreme Court Mahanoy the decision came after the lower court’s decision, but the Court of Appeal recalls its own 2022 decision in Thompson v. Ragland (covered here), which dealt with the unconstitutional punishment of speech on campus. If this speech (critique of a professor) could not be regulated on campus, it obviously could not be regulated off campus. But it’s not the same kind of talk, so we’ll have to wait and see how the lower court handles this one.

Even if qualified immunity ends up letting the district escape trial, the contours of off-campus speech regulation in the Tenth Circuit are much more clearly established. While this won’t stop school administrators from overstepping their bounds, it will at least make them easier to prosecute.

Filed Under: 10th Circuit, 1st Amendment, Free Speech, Jokes, Off-Campus Speech