Tenth Circuit revives off-campus speech lawsuit, cites Mahanoy v. B.L.

By Elise Spenner

A year ago, the Court ruled 8-1 in Mahanoy v. B.L. that Brandi Levy was unconstitutionally punished for posting a Snapchat story depicting her and her friend with their middle fingers raised and a caption that said “f*** school, f*** softball, f*** cheer, f*** everything.”

On Wednesday, the Tenth Circuit used the Supreme Court’s reasoning in Mahanoy to revive a lawsuit from a high school student in Colorado who was suspended and subsequently expelled for sending a private Snapchat story with the message “me and the boys bout to exterminate the Jews.” The boy argued that his First Amendment and Fourteenth Amendment (due process) rights were violated, but the district court dismissed the suit, saying the claim was unsubstantiated.

The case is CI.G. v. Siegfried. CI.G is the father of C.G., the expelled student. Siegried is the Superintendent of Cherry Creek School District, where C.G.’s high school is located.

Mahanoy and Siegfried start with eerily similar scenarios. Levy posted her Snapchat from a convenience store; C.G. sent his from a thrift store with three friends. A teammate of Levy’s took a screenshot of the Snapchat and showed it to her mother, a coach; a Snapchat “friend” of C.G.’s took a screenshot of his post and showed it to her father. 

The two cases diverge here. While Levy was suspended for a year from cheerleading to avoid damaging the teamlike environment — a punishment the Supreme Court ruled was unconstitutional —  the friend’s father called the police on C.G., the post found its way to school and community leaders, and C.G. was suspended and then expelled for one year. 

In dismissing the case, the district court applied the on-campus test from Tinker v. Des Moines to off-campus speech. Tinker allowed schools to regulate speech if it caused or could foreseeably cause a material or substantial disruption to school activity, or if it infringed on the rights of other students. According to the district court, C.G.’s anti-semetic post was likely to do both of the above. 

The circuit court reversed the First Amendment dismissal, and the case will likely return to the district court for further hearings. 

The circuit court’s reasoning rested heavily on Mahanoy v. BL. 

In upholding Levy’s speech, the Court cited several factors that diminished the school’s regulatory reach.

1. The speech occurred outside of school and school hours
2. The speech was not specific to school or people in school community
3. The speech was sent on a personal cell phone to personal friends

All three factors are true for C.G.’s speech as well, the circuit court emphasized. 

Furthermore, the circuit court concluded, any of the school’s reasons for regulating the speech lacked constitutional grounds, just as they did in Mahanoy.

1. First, although school officials stand “in loco parentis” (in the place of parents) at school, they can’t do so off-campus. Therefore, the school doesn’t have grounds to “consider the rights of other students” or attempt to prevent vulgarity.
2. Second, in terms of actual disruption to school activity, C.G.’s speech resulted in four emails from parents, news reports, and a conversation during an advisory period. This failed to meet Tinker’s high “substantial or material disruption” standard.
3. Third, the district couldn’t prove a foreseeable disruption because C.G.’s post didn’t contain “specific threats directed at a school, its students, or its officials.”

There was another issue. C.G’s suit argued that throughout the disciplinary process — he was suspended, that suspension was extended twice, he was given an expulsion hearing, and then he was expelled — the district violated his Fourteenth Amendment due process rights. Because the circuit court was dealing with a dismissal by the district court, the burden was on the school district. The circuit court had to assume that all of C.G.’s factual allegations were true — namely, that the school district officials didn’t give C.G. a chance to “present his side of the story,” which, if valid, meets the due process requirement for suspensions. And if this first suspension may have violated his due process rights, the district court needs to go back and reexamine the subsequent suspensions and expulsion, the circuit court wrote.

Let’s return to the First Amendment question. In thinking about this case, it’s important to remember that despite the similarities between Levy and C.G.’s Snapchat posts, one contained a few swear words, while the other was at best virulent hate speech and at worst a legitimate threat to student safety. 

Justice Breyer’s opinion in Mahanoy was broady applauded for its well-reasoned conclusions, and there’s no arguing that it offered valuable guidance to lower courts without drawing a red-line rule. However, CI.G. v. Siegfried also proves how malleable the Mahanoy opinion is. Mahanoy diminished the school’s authority to regulate speech and was unclear as to where and when Tinker’s standard would apply. But it did so while considering a relatively anodyne situation that didn’t present the competing interests apparent in off-campus hate speech cases like CI.G. v. Siegfried. Thus, the Tenth Circuit in Siegfried was able to draw a straight line between Levy’s speech and C.G.’s speech without adequately weighing the unique danger of C.G.’s words.