Opinion | Now we see the wisdom of the high court’s ‘vulgar cheerleader’ ruling

 Opinion | Now we see the wisdom of the high court’s ‘vulgar cheerleader’ ruling


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That was quick. Only 13 months after the Supreme Court sided with Pennsylvania’s vulgar cheerleader, its decision benefited a Colorado teenager who has the cringeworthy “humor” common among adolescent males. Both cases echoed what a few Iowa teenagers got the nation’s highest court to do 53 years ago.

As he is referred to in court documents, “C.G.” was in a suburban Denver thrift store trying on stuff, including something that he thought resembled a World War II-era military hat.C.G. posted on Snapchat a picture of a friend wearing it, and C.G. added this caption: “Me and the boys bout [sic] to exterminate the Jews.” This was visible only to Snapchat users connected to C.G., and he deleted it after a few hours and posted this apology: “I’m sorry for that picture it was ment [sic] to be a joke.”

But before the deletion, a Snapchat “friend” of C.G. took a screenshot of the post and showed it to her father, who evidently has an adolescent’s wisdom: He called the police. They visited C.G.’s house and, in the perhaps droll summation of the U.S. Court of Appeals for the 10th Circuit, they “found no threat.”

No incipient genocide. End of story? Not in this age of social media and dithering adults.

His school suspended and then expelled C.G. for a year, citing school district policies forbidding, inter alia, behavior “on or off school property” that is “detrimental to the welfare, safety or morals of other students or school personnel.” This absurdity, occasioned by a bad joke, was unconstitutional, given what the Supreme Court said about the ninth-grader who, when she failed to make the varsity cheerleading team, posted on Snapchat — off campus and after school hours — a picture of her raised middle finger, and a teenager philippic, about half of it consisting of profanity.

Her school disciplined her because she violated the school’s requirement to avoid “foul language and inappropriate gestures.” Thirteen months ago, the Supreme Court held in her case that K-12 schools cannot police off-campus speech not directed at any student, teacher or administrator. In 1969, the Supreme Court sided with three Des Moines high school students who had been suspended for violating a rule against wearing protest armbands, a rule their school adopted upon learning that the three were planning to wear armbands protesting the Vietnam War. The court held that armbands are neither disruptive nor violative of others’ rights.

A district court dismissed the suit C.G. filed against various school officials, charging violation of his First Amendment speech rights and of his 14th Amendment claim that due process was denied to him when he was denied an opportunity to defend himself and was not informed of most of the charges against him. The 10th Circuit reminded the district court of the cheerleader and armband cases, and it directed the lower court to reconsider.

It was absurd for C.G.’s school — whose overreaction to his puerile Snapchat post caused more turmoil than his post did— to believe that the post could cause disruption at the school. The school officials’ contention that C.G.’s post was “hate speech targeting the Jewish community” was as dumb as his joke and confused puerility with animosity.

C.G. is suing school administrators for money damages. They claim “qualified immunity,” arguing that they could not reasonably have been expected to know that they could not punish C.G. for his promptly regretted stupidity that occurred away from, and without reference to, his school.

Unfortunately but actually, no reasonable person thinks that the kind of people running American education today know — or, in the unlikely event that they do know, that they care — what constitutional law says about speech protections. Furthermore, Joe Biden’s Education Department, like Barack Obama’s, is pressuring institutions of higher education — which hardly need pressure — to conduct ersatz courts in which people accused of sexual misbehavior are denied due process rights (e.g., the rights to counsel, to confront their accusers, and to not to be convicted by a mere “preponderance” of evidence rather than evidence beyond a reasonable doubt).

In an amicus brief filed in the 10th Circuit on C.G.’s behalf, FIRE — the indefatigable and indispensable Foundation for Individual Rights and Expression — argued that tomorrow’s college students are attending today’s K-12 schools, where mistaken censorship policies miseducate them. They then arrive on college campuses demanding “safe spaces” as refuge from speech that annoys them. So, litigating teenagers’ Snapchat misadventures is as necessary as it is tiresome.



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