Federal Appellate Court Decision Further Complicates School District Authority to Discipline Off-Campus Student Speech
In August, 2021, the United States Supreme Court broke new ground in Mahanoy Area School District v. B.L. (2021) 141 S.Ct. 2038, addressing for the first time the authority of public school districts to discipline students for off-campus speech. As we questioned at the time, “[i]n a world where posting or snapping about any thought instantaneously occurs, when is sharing an opinion or criticism too much, and who decides when enough is enough?” The Mahanoy court correctly realized that deciding when “enough is enough” could not be answered with a bright-line rule, and that “future cases” would determine the parameters of when schools can discipline off-campus speech and conduct. A recent federal appellate court decision in Colorado and the focus of this Alert, C1.G, on behalf of his minor son, C.G. v. Siegfried (10th Cir. 2022) 38 F.4th 1270, is one of those cases, and it reinforces the difficulty school administrators face when assessing off-campus speech and conduct that has an actual or potential negative impact on other students and school personnel.
The Court in Mahanoy laid out three “features” of off-campus speech that were relevant to their analysis: 1) a school rarely stands in loco parentis (i.e. stand in the place of parents) when a student speaks off campus; 2) from the student’s perspective, if schools could regulate all off-campus speech, all speech a student utters during a 24-hour day could be regulated; and 3) the school itself has an interest in protecting a student’s unpopular expression, especially off-campus expression. “Taken together,” the Court stated, “these three features of much off-campus speech mean the leeway the First Amendment grants to schools in light of their special characteristics is diminished.” The Court did affirm, contrary to the appellate court in the same case, that the standard laid out in Tinker v. Des Moines Independent Community School District (1969) 393 U.S. 503, applies to off campus speech — that “schools have a special interest in regulating speech that materially disrupts classwork or involves substantial disorder or invasions of the rights of others”; “[t]he school’s regulatory interests remain significant in some off-campus circumstances,” which “include serious or severe bullying or harassment targeting particular individuals. ...” (Mahanoy, (2021) 141 S.Ct. at p. 2045.)
Mahanoy has been cited multiple times in state and federal courts in the one year since it was decided, but few cases have directly involved off-campus speech and student discipline for that speech. Some have been seemingly “easy cases,” examples of why the Supreme Court in Mahanoy was correct to conclude that off-campus speech can certainly meet the Tinker standard of material disruption, substantial disorder, and/or invasions of the rights of others. Thus, in Doe v. Hopkinton Public Schools (1st Cir. 2021) 19 F.4th 493, for example, a federal appellate court concluded that two students involved in rather relentless bullying of a classmate and hockey teammate were not protected by the First Amendment simply because most of the speech occurred off-campus.
C1.G is a closer case, landing factually between the facts in Mahanoy and the facts in Doe v. Hopkinton Public Schools. In C1.G, the off-campus speech occurred on a Friday night, in a thrift store. Student C.G. was with three friends, and he took a picture of his friends wearing wigs and hats, including “one hat that resembled a foreign military hat from the World War II period.” C.G. posted the photo on Snapchat with a caption, “Me and the boys bout [sic] to exterminate the Jews.” The post was part of C.G.’s private “story,” visible only to Snapchat users connected with C.G. on the platform, and although these posts automatically delete after 24 hours, C.G. deleted this post after a few hours. He then posted: “I’m sorry for that picture it was ment [sic] to be a joke.” As is typical in these circumstances, however, deleting the post did not delete it from existence, and it spread quickly — one of C.G.’s Snapchat friends made a screenshot of the post before it was deleted and showed it to her father, who immediately called the police. News of the post, and the post itself, spread throughout the community. School officials were contacted, and on Sunday — two days after the posting — a student’s mother emailed the school principal, the District’s Chief of Staff, a local Rabbi, the Regional Director of the Anti-Defamation League, and others. The student’s mother stated that the picture “ha[d] been widely circulated throughout the Jewish community th[at] weekend” and “generate[d] fear, anger, and sadness for [herself and her husband], and most importantly [her son] who ha[d] a class with at least one of the students identified in the picture.” The mother also referenced prior anti-Semitic activity at the high school and asked the school to use this incident to address the rise in hate speech and hate crimes in the community.
When school started Monday morning, school security met C.G. at his first period class and escorted him to the Dean of Students, who later in the day suspended C.G. for five days. That afternoon, the school principal sent an email to the community, including students, parents, and staff, about the “anti-Semitic social media post over the weekend.” The email explained that the school “was investigating to determine the impact on the school environment and will take appropriate action,” that the school “does not tolerate hateful speech or actions,” and that it is the school’s “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.” Over the next few days, multiple news outlets ran stories covering the Snapchat post and three additional parents contacted the school about it. The school had twice-weekly, thirty-minute advisory periods built into its bell schedule intended to manage administrative and counseling tasks that have historically interrupted educational time, and the school used an entire advisory period to discuss C.G.’s post and encourage conversation between students and faculty about offensive and insensitive speech. After further review and extensions of the suspension, C.G. was recommended for expulsion, and after a hearing, C.G. was expelled. At the expulsion hearing, C.G. provided a letter apologizing for his behavior and accepting responsibility, calling the post an impulsive lack of judgment and disclaiming intent to hurt anyone, and stating that he had taken time to educate himself about Jewish history. His parents and community members also provided letters of support.
C.G. filed suit, and the federal district court granted the District’s motion to dismiss. The court noted that under Tinker, “[a] disruption need not actually materialize....so long as the situation ‘might reasonably [lead] authorities to forecast’ substantial disruption or interference with the rights of others,” and that it was foreseeable that C.G.’s post could cause substantial disruption and interfere with the rights of others. (477 F.Supp.3d 1194 (2020).) On appeal, the Court of Appeals reversed the lower court’s conclusion, and sent the case back to the district court for further litigation.
The court stated that “[i]n many respects and based on the Complaint, this case is materially similar” to Mahanoy. The speech occurred “outside of school hours from a location outside the school,” it “did not identify the school … or target any member of the school community with vulgar or abusive language.” (Emphasis added.) C.G. “transmitted [his] speech through a personal cellphone, to an audience consisting of [his] private circle of Snapchat friends.” Quoting again from Mahanoy, the court noted that these facts, “while risking transmission to the school itself, nonetheless ... diminish the school’s interest in punishing [C.G.’s] utterance.” But the C1.G case is materially distinct from Mahanoy on the topic of “targeting” members of the school community. Mahanoy dealt with a “vulgar” photo showing two students with their middle fingers up, and a caption that read: “F**k school f**k softball f**k cheer f**k everything.” It included a second post generally critical of the school’s cheerleading program. It did not fall into the category of hate speech; it upset some cheerleaders and their coaches, but it did not suggest violence toward a protected class or invoke the horrific imagery of the Holocaust. The subsequent disruption at the school in Mahanoy included a 5-10 minute discussion of the matter in a math class “for a couple of days.” It did not necessitate the involvement of the Anti-Defamation league, or a letter to the community assuring it that the school “does not tolerate hateful speech or actions” and takes seriously its “responsibility … 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.” It did not necessitate an email to a Jewish parent concerned about the safety of her child, who was enrolled in a class with one of the involved students.
The Mahanoy decision noted that “[a] general statement of discontent is vastly and qualitatively different from bullying that targets and invades the rights of an individual student,” and that schools have a significant interest in regulating “serious or severe bullying or harassment” that invades the rights of others. C.G.’s post did not target or name an individual student, but it was clearly not a “general statement of discontent,” and the court’s decision raises questions regarding how specific hate speech must be to cross the line and target or invade the rights of individual students. Unfortunately, the C1.G. court provided little guidance, if any, because it addressed the District’s argument that they “must consider the rights of other students to be free from harassment and receive an effective education” in a surprising way. The court stated “the school cannot stand in loco parentis here” because “[t]hat doctrine applies ‘where the children’s actual parents cannot protect, guide, and discipline them.’” It is unclear why the court considered the district’s “significant interest in regulating ‘serious or severe bullying or harassment’” of other students — indeed its duty to prevent harassment and bullying — into a question related solely to the perpetrator. In other words, the district was not asserting that C.G.’s parents “cannot protect, guide, and discipline” him and therefore the school could and should discipline him; the issue was whether the district’s obligation to create and sustain an educational environment free of harassment, bullying, and threats was sufficiently threatened to conclude that the rights of other students were invaded.
Finally, the court was unconvinced that the district had “a reasonable expectation of substantial disruption” or that a substantial disruption actually occurred. The court stated that the receipt of emails about the post, its wide circulation and coverage in the news media, the fact that it “scared, angered, and saddened a family who said their son was worried about having a class with C.G.,” additional parent contacts expressing concern, and the use of an advisory period to discuss C.G.’s post and promote conversation about harmful speech did not rise to the level of “substantial disruption” under Tinker. This is another example of how Mahanoy was an easier case, because not only was the nature of the speech substantively different, but the impact of the social media post did not rise to the level C.G.’s post created, and did not require the same level administrator involvement to address its impact on students and the school community. Nonetheless, the C1.G. court said the principal “needed more to substantiate his ‘feel[ing] [that] the learning environment ha[d] been impacted,’” and that “‘impact[ ]’ does not necessarily equal substantial disruption.” Important to the court’s consideration was that “C.G.’s post did not include weapons, specific threats, or speech directed toward the school or its students.” The court stated, “C.G.’s speech does not constitute harassment and its hateful nature is not regulable in this context.”
The C1.G decision reversed the granting of a motion to dismiss, which means that there had been no factual record developed other than the allegations in the lawsuit itself. In a certain sense and because the legal standard of a motion to dismiss is to treat allegations in a lawsuit as being true, even if they are not, the “decision” of the court was not entirely surprising precisely because it was not a decision on the facts of the case, but a ruling on a motion at the very earliest stages of a lawsuit. After returning to the district court, and after the discovery phase of the litigation, the district may be able to provide specific evidence substantiating the nexus between the off campus speech and a material disruption of classwork, substantial disorder, or an invasion of the rights of others. The C1.G. decision, as it stands, suggests the standard for determining when disciplining off campus speech and conduct can subject a student to discipline under Tinker will turn whether it includes weapons, it includes threats or comments directed at specific students, it directly or indirectly identifies the school, or it is intended for a small audience (regardless of what the actual audience ends up being). This decision highlights why it is critical for school administrators to conduct thorough, accurate, and well documented investigations prior to moving forward with student discipline.
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