C1.G ex rel. C.G. v. Siegfried

• Decision Date: 06 July 2022
• Docket Number: 20-1320
• Citation: 38 F.4th 1270
• Parties: C1.G, ON BEHALF OF his minor son, C.G., the aggrieved party, Plaintiff - Appellant, v. Scott SIEGFRIED, Superintendent of Cherry Creek School District; Chris Smith, Chief of Staff for the Educational Services Center of Cherry Creek School District; Ryan Silva, Principal of Cherry Creek High School; Kevin Uhlig, Assistant Principal at Cherry Creek High School; Brynn Thomas, Dean at Cherry Creek High School; Cherry Creek School District No. 5; Carla Stearns, Executive Director of High School Education at Cherry Creek School District, Defendants - Appellees. American Civil Liberties Union; American Civil Liberties Union of Colorado; Foundation for Individual Rights in Education; Cato Institute; Electronic Frontier Foundation; National School Board Association; Colorado Association of School Boards; Kansas Association of School Boards ; New Mexico School Boards Association; Wyoming School Boards Association; Utah School Boards Association, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

38 F.4th 1270

C1.G, ON BEHALF OF his minor son, C.G., the aggrieved party, Plaintiff - Appellant,

v.Scott SIEGFRIED, Superintendent of Cherry Creek School District; Chris Smith, Chief of Staff for the Educational Services Center of Cherry Creek School District; Ryan Silva, Principal of Cherry Creek High School; Kevin Uhlig, Assistant Principal at Cherry Creek High School; Brynn Thomas, Dean at Cherry Creek High School; Cherry Creek School District No. 5; Carla Stearns, Executive Director of High School Education at Cherry Creek School District, Defendants - Appellees.

American Civil Liberties Union; American Civil Liberties Union of Colorado; Foundation for Individual Rights in Education; Cato Institute; Electronic Frontier Foundation; National School Board Association; Colorado Association of School Boards; Kansas Association of School Boards ; New Mexico School Boards Association; Wyoming School Boards Association; Utah School Boards Association, Amici Curiae.

No. 20-1320

United States Court of Appeals, Tenth Circuit.

FILED July 6, 2022

Jamie Hubbard of Stimson, Stancil, LaBranche, Hubbard, L.L.C. (Andrew McNulty of Kilmer, Lane & Newman, L.L.P., with her on the briefs), Denver, Colorado, for Plaintiff - Appellant.

Jonathan Fero, (and M. Johnathan Koonce of Semple, Farrington, Everall & Case, P.C., on the brief), Denver, Colorado, for Defendants - Appellees.

Vera Eidelman (and Ben Wizner of American Civil Liberties Union Foundation, New York, New York; Mark Silverstein and Sara Neel, American Civil Liberties Union of Colorado, Denver, Colorado, with her on the brief), for Amici Curiae American Civil Liberties Union and American Civil Liberties Union of Colorado.

Ilya Shapiro of Cato Institute, Washington, D.C.; Darpana Sheth and Ronald G. London of Foundation for Individual Rights in Education, Philadelphia, Pennsylvania, on the brief for Amici Curiae Foundation for Individual Rights in Education and Cato Institute.

Sophia Cope, David Greene and Mukund Rathi of Electronic Frontier Foundation, San Francisco, California, on the brief for Amici Curiae Electronic Frontier Foundation.

Francisco M. Negrón, Jr., Chief Legal Officer, of National School Boards Association, Alexandria, Virginia; W. Stuart Stuller of Caplan and Earnest, L.L.C., Boulder, Colorado, on the brief for Amici Curiae National School Boards Association, et al.

Before MATHESON, KELLY, and McHUGH, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff-Appellant Cl.G., on behalf of his minor son, C.G., appeals from the district court's dismissal of his case against Defendants-Appellees Cherry Creek School District (District or CCSD) and various employees thereof for alleged constitutional violations stemming from C.G.’s suspension and expulsion from Cherry Creek High School (CCHS). Cl.G. v. Siegfried, 477 F. Supp. 3d 1194 (D. Colo. 2020). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further proceedings.

Background

On the evening of Friday, September 13, 2019, C.G. was off campus at a thrift store with three friends. Cl.G., 477 F. Supp. 3d at 1200. 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." Id. C.G. posted that picture on the social media platform Snapchat and captioned it, "Me and the boys bout [sic] to exterminate the Jews." Id. (quoting Aplt. App. 46). C.G.’s post (the photo and caption) was part of his private "story," an online feed visible only to Snapchat users connected with C.G. on that platform. Aplt. App. 45–47. Posts on a user's Snapchat story are automatically deleted after 24 hours, but C.G. removed this post after a few hours. Cl.G., 477 F. Supp. 3d at 1200. He then posted on his Snapchat story, "I'm sorry for that picture it was ment [sic] to be a joke." Id. at 1200–01.

One of C.G.’s Snapchat "friend[s]"¹ took a photograph of the post before C.G. deleted it. Id. at 1201. She showed it to her father, and he called the police, who visited C.G.’s house and found no threat. Id. Referencing prior anti-Semitic activity and indicating that the post caused concern for many in the Jewish community, a CCHS parent emailed the school and community leaders about the post. Id.

On Monday, September 16, 2019, Dean of Students Brynn Thomas told C.G. that he was suspended for five days while the school investigated. Id. Two days later, the school extended C.G.’s suspension five days to facilitate an expulsion review, and then another 11 days to allow for completion of that review. Id. at 1202. On October 7, 2019, CCSD held an expulsion hearing, and the hearing officer recommended expulsion.² Id. at 1202–03. Fourteen days after the hearing, Superintendent Scott Siegfried informed C.G. that he was expelled for one year for violating District policies:

(1) JICDA(13) prohibiting verbal abuse in a school building or on school property (overruling the hearing officer's finding that JICDA(13) did not apply);

(2) JICDA(19) regulating "behavior on or off school property which is detrimental to the welfare, safety or morals of other students or school personnel";

(3) ACC-R prohibiting intimidation, harassment, or hazing by directing an obscene comment or gesture at another person or insulting or challenging another person or by threatening another person; and

(4) JKD-1-E, which allows for suspension, expulsion or denial of admission for behavior on or off school property that is detrimental to the welfare or safety of other pupils or of school personnel including behavior that creates a threat of physical harm.

Id. at 1203 (quoting Aplt. App. 57). Upon C.G.’s appeal, the Board affirmed the Superintendent's decision. Id.

Plaintiff filed suit under 42 U.S.C. § 1983 claiming: (1) violations of C.G.’s rights under the First and Fourteenth Amendments against CCHS/CCSD officials for C.G.’s suspension and expulsion; (2) the same violations against the District for adopting policies in violation of the First Amendment; (3) violations of C.G.’s Fourteenth Amendment procedural due process rights against all Defendants for C.G.’s suspension and expulsion; (4) the same violations asserted in claim (3) against the District for adopting policies in violation of the Fourteenth Amendment; and (5) violations of the First and Fourteenth Amendments against all Defendants for conspiracy to violate C.G.’s constitutional rights.³ Id. at 1204.

Defendants filed a motion to dismiss Plaintiff's Amended Complaint (Complaint) for failure to state a claim under Federal Rule of Procedure 12(b)(6) or to grant individual Defendants qualified immunity. See Aplt. App. 73–87. The district court determined that Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), applied to off-campus speech, though it noted that the pervasiveness of social media had limited the utility of the distinction between off-campus and on-campus speech. Cl.G., 477 F. Supp. 3d at 1204–06. The district court held that it was foreseeable that C.G.’s post could cause substantial disruption and interfere with the rights of others. Id. at 1209–10. Concluding further that "the school did have authority to discipline C.G. for his Snapchat post" and CCSD's policies were facially valid, it dismissed Plaintiff's First Amendment claims. Id. at 1208–11. Finding that Defendants had provided adequate process in disciplining C.G. and that Plaintiff had abandoned his facial challenge to the District's policies, it also dismissed Plaintiff's due process claims. Id. at 1211–16. Last, the district court dismissed Plaintiff's conspiracy claim for lacking a constitutional violation. Id. at 1216.

On appeal, Plaintiff argues 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. Plaintiff relies heavily on Mahanoy Area School District v. B.L., ––– U.S. ––––, 141 S. Ct. 2038, 210 L.Ed.2d 403 (2021), decided after the district court's decision in this case. According to the Plaintiff, Mahanoy reaffirmed existing principles that a school normally cannot regulate off-campus student speech, so the individual Defendants are not entitled to qualified immunity. Plaintiff contends that CCSD's policies are facially unconstitutional and overbroad because they do not incorporate this distinction. Finally, Plaintiff argues that C.G.’s due process rights were violated because he was not afforded adequate notice or opportunity to be heard regarding his suspensions and First Amendment rights.

Defendants maintain that C.G. was lawfully disciplined for what amounts to off-campus hate speech. According to Defendants, although originating off campus, C.G.’s speech still spread to the school community, disrupted the school's learning environment, and interfered with the rights of other students to be free from harassment and receive an education. Defendants also contend that C.G. was provided all the process that was due.

Discussion

We review dismissal under Rule 12(b)(6) for failure to state a claim de novo. Reznik v. inContact, Inc., 18 F.4th 1257, 1260 (10th Cir. 2021). In this review, we accept a complaint's well-pleaded factual allegations as true, "view all reasonable inferences in favor of the nonmoving party, and liberally construe the pleadings." Id. If a complaint "state[s] a claim to relief that is plausible on its face," it survives a Rule 12(b)(6) motion. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

I. Regulation of Student Speech

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." Tinker, 393 U.S. at 509, 89 S.Ct. 733 ; Thompson v. Ragland, 23 F.4th 1252, 1258 (10th Cir. 2022). A school can also regulate student speech where it reasonably forecasts such...