Judge: Cherry Creek officials cannot be sued for expelling student over antisemitic Snapchat post

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GREENWOOD VILLAGE | Cherry Creek School District officials cannot be sued in their personal capacity for their roles in expelling a student for making an antisemitic post on Snapchat even though their actions were deemed unconstitutional, a judge ruled last week.

In September 2019, a Cherry Creek High School student referred to in court documents as C.G.  posted a picture of himself and several friends on Snapchat in a thrift store wearing vintage hats. The hats resembled WWII-era military garb, and the post was captioned “Me and the boys bout to exterminate the Jews.” According to court documents, the student deleted the post and offered an apology within several hours.

After the post circulated throughout the community and came to the attention of law enforcement, the district ultimately suspended C.G. for one year on the grounds that he violated school conduct. C.G. and his parents then sued Cherry Creek in U.S. District Court in Colorado, alleging that his First Amendment rights had been violated.

The case was dismissed in 2020 and then appealed in the 10th Circuit Court. A number of free speech organizations, including the ACLU, the Foundation for Individual Fights in Education and the Cato Institute all filed “friend of the court” briefs in support of the student during the appeal process.

In 2021, director of the the Mountain States Anti-Defamation League Scott Levin told The Sentinel that the incident had caused a lot of pain to the local Jewish community and the ADL hoped it could be “a teachable moment for students and for others about the inappropriateness of Holocaust analogies.”

As first reported by Colorado Politics, in July the Court of Appeals ruled in C.G.’s favor, saying that his First Amendment rights had been violated and sending the case back to a lower court to rule on whether the administrators involved in his expulsion deserved qualified immunity.

Qualified immunity protects government employees from being held personally liable when they are sued in the course of their work unless they violate clearly established legal precedents. The doctrine is controversial in legal circles because it sets a very high bar for prosecuting public officials.

The original lawsuit was filed against the school district, former superintendent Scott Siegfried, former chief of staff Chris Smith (who is now superintendent) and Cherry Creek High School’s principal, assistant principal and dean. 

In a Friday ruling, U.S. District Court in Colorado Judge R. Brooke Jackson ruled that the administrators were protected by qualified immunity because they followed existing legal precedent at the time. The lawsuit against the district itself will be ongoing.

This case in large part hinged on a Supreme Court ruling that went into effect while C.G. and his family’s lawsuit was underway. In 2021, the Supreme Court ruled in favor of a Pennsylvania cheerleader who was suspended from the cheer squad after making a profane Snapchat post off of school grounds. The Supreme Court ruled that her First Amendment rights were violated, and that schools can only regulate off-campus student speech when it is significantly disruptive to the classroom.

C.G.’s lawsuit was the first case regarding schools’ ability to regulate online speech that takes place off campus to reach federal appellate court since that ruling.

In Friday’s ruling, Jackson said that the Supreme Court case was in C.G.’s favor, and was the precedent the 10th Circuit cited for overturning the original ruling.

“Because—as the Tenth Circuit held in its remand order—C.G. has properly pled a violation of his First Amendment right to free speech, the question at this stage is whether a reasonable school official would have known in September 2019 that it was unlawful to discipline C.G. for anti-Semitic content posted online and off-campus,” he said.

Jackson said there was no precedent at the time, and therefore the administrators could not be held personally liable for how they handled the situation.

“Given the distinction between disparaging a cheerleading squad and noting that one is about to ‘exterminate the Jews,’ it is not clear that a reasonable school official even after Mahanoy would have known that disciplining C.G. was unlawful—let alone that the official would have divined that impropriety two years earlier,” Jackson said. “School officials are not required to be clairvoyants.”

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