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C1.G v. Siegfried.

No. 21-1320. 7/6/2022. D.Colo. Judge Kelly. High School Suspension and Expulsion—42 USC § 1983—First Amendment—Fourteenth Amendment Procedural Due Process—Motion to Dismiss.

July 6, 2022

C.G., a student at Cherry Creek High School (CCHS), was off campus at a thrift store with three friends on a Friday evening when 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 picture on Snapchat and captioned it, “Me and the boys bout to exterminate the Jews.” He removed the post after several hours and posted that he was sorry for the picture. One of C.G.’s Snapchat “friends” took a photo of the post before it was deleted. She showed it to her father, who called the police. The police went to C.G.’s house and determined there was no threat. A CCHS parent emailed the school and community leaders about the post.

The following Monday, the CCHS dean of students told C.G. that he was suspended for 5 days while the school investigated. The suspension was then extended another 5 days to facilitate an expulsion review, and then another 11 days to allow for its completion. Following an expulsion hearing, the superintendent informed C.G. that he was expelled for one year for violating several Cherry Creek School District (District) policies.

Plaintiff, on behalf of his minor son C.G., filed suit against the District and various employees under 42 USC § 1983, claiming violations of the First and Fourteenth Amendments. Defendants moved to dismiss under FRCP 12(b)(6) for failure to state a claim and on the basis of qualified immunity. The district court granted the Rule 12(b)(6) motion and dismissed plaintiff’s claims.

On appeal, plaintiff argued that the First Amendment limits school authority to regulate off-campus student speech, particularly speech unconnected with a school activity and not directed at the school or its specific members. The appeal relied heavily on Mahanoy Area School District v. B.L., 141 S.Ct. 2038 (2021), a US Supreme Court decision decided after the district court’s decision.

Under the seminal decision, Tinker v. Des Moines Independent Community School, 393 U.S. 503 (1969), schools may restrict student speech only if it would substantially interfere with the work of the school or impinge upon the rights of other students. Based on Mahanoy, in considering student speech that occurs off campus and unconnected to any school activity, a school (1) can rarely stand in loco parentis, (2) will have a heavy burden to justify intervention when political or religious speech is involved, and (3) must especially respect an interest in protecting a student’s unpopular expression.

The Tenth Circuit noted that the speech in this case is materially similar to the offensive, controversial speech at issue in Mahanoy. C.G. spoke outside of school hours from a location outside the school, did not identify the school in the post or target any member of the school community in particular, and transmitted the speech through his personal cellphone to an audience consisting of Snapchat friends. Schools may not invoke the doctrine of in loco parentis to justify regulating off-campus speech in normal circumstances. The Tenth Circuit also concluded that the facts did not support a reasonable forecast of substantial disruption that would warrant dismissal of the complaint. While offensive, the Tenth Circuit noted the post did not include weapons, specific threats, or speech directed toward the school or its students. Plaintiff thus properly alleged that the discipline for off-campus speech was a First Amendment violation that was not properly dismissed.

Next, because the district court did not address the question of qualified immunity, the Tenth Circuit remanded that issue for consideration.

Third, the Tenth Circuit’s determination that C.G. properly pleaded a First Amendment violation meant that his as-applied challenge successfully withstood dismissal.

Fourth, the Tenth Circuit reversed the dismissal of plaintiff’s due process claim because plaintiff pleaded that C.G. was not given a meaningful opportunity to explain his side of the story before officials made the disciplinary suspension decision. For suspensions of 1 to 10 days, a student must be given oral or written notice of the charges, and if the student denies them, an explanation of the evidence the authorities have and an opportunity to present the student’s side of the story. Additionally, despite the fact that C.G. was given notice and opportunity to be heard before the expulsion, the Tenth Circuit determined that defendants’ possible misconceptions of their ability to regulate student speech under the First Amendment may affect that analysis. The district court’s dismissal of this further procedural due process claim was also vacated for reconsideration.

Fifth, the Tenth Circuit noted that the district court correctly dismissed plaintiff’s facial challenge to the District’s policies for Fourteenth Amendment violations because plaintiff abandoned it by not addressing it in his response to the motion to dismiss.

Last, because plaintiff properly pled a constitutional violation, his conspiracy claim was remanded for the district court to evaluate it in the first instance.

The Tenth Circuit therefore reversed the district court’s dismissal of plaintiff’s First Amendment claim and did not reach the related facial challenge. The Tenth Circuit also reversed the district court’s dismissal of plaintiff’s Fourteenth Amendment procedural due process claim for the initial suspension, and the claims relating to the other disciplinary actions were vacated for reconsideration. The dismissal of further facial challenges to the District’s policies was affirmed. The questions of qualified and absolute immunity and the conspiracy claim were remanded for consideration.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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