10th Circuit revives First Amendment claims of student expelled over Nazi meme

(CN) — A Denver school district that expelled a student over a Snapchat post of his friends offensively captioned with a Nazi meme reference must face the student's First Amendment case, a 10th Circuit panel ruled Wednesday.

“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,” Senior U.S. Circuit Judge Paul Kelly wrote in a 21-page opinion.

Fifteen-year-old C.G. was hanging out at a thrift store on a Friday night when he shared a photo of his friends in World War II-era hats on the social media app Snapchat, captioned with the hashtag “me and the boys bout to exterminate the Jews.”

According to court documents, C.G. thought the allusion to a dark internet meme was so outrageous no one could possibly take it seriously. Although he deleted the post and apologized for it within an hour, it had already been seen by a classmate and shared with parents who forwarded it to the Cherry Creek School District.

The following Monday, C.G. was suspended while the school and police investigated the incident. After he was expelled, C.G.’s parents sued the school district in 2019. A federal judge dismissed the case in August 2020, finding the school properly disciplined him.

But the 10th Circuit panel found C.G.’s post did not amount to a “true threat,” and was not treated as one by the school.

"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,” wrote Kelly, a George W.H. Bush appointee.

On appeal, C.G. relied heavily on the 2021 Supreme Court decision in Mahoney Area School District v. B.L., which found a cheerleader had been wrongly suspended for a vulgar “fuck school, fuck softball, fuck cheer, fuck everything” post.

Notably, both B.L. and C.G. spoke off campus outside of school hours, identified neither their school or targets, and both sent their message on a personal cellphone to a private circle of followers. While there was still a risk of the message being seen by the school, the 10th Circuit agreed these factors “diminish the school's interest in punishing his utterance."

The Supreme Court, however, ruled in Mahanoy after the federal judge dismissed C.G.’s case. Additionally, few cases have addressed schools' ability to punish students for speech made online. The panel therefore remanded the case to decide whether the school’s conduct violated clearly established law and if it is appropriate to grant qualified immunity.

The appellate court also remanded C.G.’s conspiracy claims for further review, after establishing the complaint adequately showed a violation of his rights.

Although the lower court accepted Cherry Creek’s account that C.G. was given a meaningful opportunity to tell his side of the story the first day he sat in the principal’s office, the appellate panel considered it a red flag that his mother was denied the opportunity to meet with the school prior to the expulsion hearing.

"It is certainly plausible that C.G. was not given a meaningful opportunity to explain his side of the story before officials made a disciplinary decision," Kelly wrote. "This is all plaintiff needs to survive a motion to dismiss on this claim."

But the panel affirmed dismissal of C.G.’s claims that the school’s policies violated his 14th Amendment rights, finding the claim not adequately argued.

U.S. Circuit Judges Carolyn McHugh and Scott Matheson Jr., both Barack Obama appointees, rounded out the panel.

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