Now the Tenth Circuit is considering its first off-campus student speech case since Mahanoy was decided. C.G. is a public high school student who, on a Friday night at a thrift shop, used Snapchat to post a tasteless and offensive attempted joke. C.G. was punished by his parents, who ensured that he talked with and apologized to local community members and advocacy groups. Nonetheless, C.G. was suspended and eventually expelled. C.G.’s father, C1.G., sued on C.G.’s behalf. But the district court upheld that expulsion (in a decision issued before Mahanoy was decided), and C1.G. has now appealed to the Tenth Circuit.
Cato has joined the Foundation for Individual Rights in Education (FIRE) in an amicus brief at the Tenth Circuit urging reversal. In the brief, we explain that this is precisely the type of case where Mahanoy instructs that discipline should be left to a student’s parents, not to the public school. C.G.’s parents admirably handled the situation, and there is no evidence that allowing C.G. to remain in school would have substantially disrupted the school environment.
Further, the brief urges the Tenth Circuit to explicitly cabin whatever holding it reaches to the K‑12 context, so that those standards do not also reach higher education. Public universities have even less of an interest in regulating or punishing what students say off campus than do K‑12 public schools, but imprecise language in the decisions of other circuits has unfortunately led K‑12 doctrine to affect public university students. The Tenth Circuit should ensure that whatever standards it establishes, it does not inadvertently set a precedent that would allow public universities to stifle the off-campus speech of its students.
In the wake of Mahanoy, it is important that lower courts take the Supreme Court’s guidance to heart and look with great skepticism on punishments for off-campus speech. C.G.’s case does not meet that high bar, and the Tenth Circuit should reverse his expulsion.
