(CN) — A Denver teenager expelled from school after mimicking a Nazi meme on Snapchat asked the 10th Circuit on Wednesday to revive his lawsuit against the school because the post was created off campus.
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 C.G. 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.
C.G. appealed.
“We are here because a 15-year-old’s attempt at dark humor on his private social media channel away from school resulted in his expulsion,” the teen's attorney, Jamie Hubbard of the Denver firm Stimson Stancil LaBranche Hubbard, told the 10th Circuit panel Wednesday.
Hubbard cited the 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.
U.S. Circuit Judge Carolyn McHugh, appointed by Barack Obama, drew a clear distinction between the cheerleader’s post and the thrift shop post.
“There is no suggestion of violence in respect to the cheerleader, but here you do have a suggestion of violence and reports from parents that some students are concerned about coming to school,” McHugh said.
Hubbard countered the record didn’t support anyone at the school seeing any real threat of violence, and noted C.G. had been allowed to come to school that Monday.
“In the era of school shootings, that would have never been allowed to happen if they believed there was an ounce of a threat caused to the school by C.G.,” Hubbard said. “The police had also investigated and found no threat, so there is no place to find the speech in this case was harassment or bullying.”
Attorney Vera Eidelman with the American Civil Liberties Union, an amicus in the case, said students' free speech is at stake.
“Extending the standard off campus would mean students never have more freedom to speak than they do in the classroom or at recess. It would put protests, op-eds, and just the ability to be a kid at risk,” Eidelman told the panel. “In addition, it would rob parents of control and responsibility outside of school.”
Senior U.S. Circuit Judge Paul Kelly drilled the school district’s attorney, Jonathan Fero, on whether C.G. had been deprived of due process.
“The school made its decision without giving him the opportunity to explain how dumb he had been and that he was sorry and that he had taken the post down immediately and apologized to everyone,” said Kelly, a George W.H. Bush appointee.
Fero countered that C.G. had plenty of time to share his side of the story while sitting in the office.
U.S. Circuit Judge Scott Matheson Jr., appointed by Obama, pushed back.
“The inferences don’t go your way on a motion to dismiss,” Matheson said. “Where’s the substantial disruption?”
Fero said the school district had forecast a substantial disturbance, but Matheson pressed the point.
“Let’s get to the substantial disruption,” Matheson repeated.
When Fero cited “fear” relayed in a parent’s email to the school, Matheson read the email out loud to clarify the parent had expressed “concern.”
Kelly questioned whether the perceived disturbance was driven by the school district’s reaction.
“Classes were not suspended, there were no demonstrations, administration held a few conferences, but other than that school went on as usual,” Kelly said. “There was no disturbance.”
Fero cited media inquires, emails and the police investigation as creating a disturbance, but the panel seemed unconvinced.
“We have a situation where if nothing happened with the school administration, the post would have disappeared and everyone would have forgotten about it,” postulated McHugh, who participated in the hearing by video from Salt Lake City.
Fero practices with the Denver firm Semple Farrington Everall & Case.
The court did not indicate when or how they will decide the case.
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