C1.G. v. Siegfried

477 F.Supp.3d 1194

C1.G., on behalf of his minor son, C.G., the aggrieved party Plaintiff,

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, and Cherry Creek School District No. 5., Defendants.

Civil Action No. 19-cv-03346-RBJ

United States District Court, D. Colorado.

Signed August 10, 2020

Jamie Hughes Hubbard, Stinson Stancil LaBranche Hubbard LLC, Denver, CO, for Plaintiff.

Daniel P. Spivey, Jonathan Patrick Fero, Michael Brent Case, Semple Farrington Everall & Case, P.C., Denver, CO, for Defendants.

ORDER ON DEFENDANTS’ MOTION TO DISMISS

R. Brooke Jackson, United States District Judge

This matter is before the Court on defendants Scott Siegfried, Chris Smith, Ryan Silva, Kevin Uhlig, Brynn Thomas, Carla Stearns, Cherry Creek School District No. 5 (the "District"), and the District's Board of Education (the "Board")’s motion to dismiss, ECF No. 32, plaintiff C.G.’s amended complaint, ECF No. 30, in its entirety. For the reasons stated herein, the motion is GRANTED.

I. BACKGROUND

C.G. is a minor student who attended Cherry Creek High School ("CCHS") until he was officially expelled on October 21, 2019. ECF No. 30 ¶¶ 32, 77. On the evening of Friday, September 13, 2019 C.G. and three friends from CCHS went to a thrift shop. Id. ¶¶ 34–35. C.G. took a picture of his three friends wearing hats and wigs, including one hat that resembled a foreign military hat from the World War II period. Id. ¶ 35. C.G. posted the picture to the social media platform Snapchat with the caption: "Me and the boys bout to exterminate the Jews." Id. ¶ 36. The caption referenced an internet meme and was intended to be humorous. Id. ¶ 36–37. C.G. posted the picture to his Snapchat story, meaning any "friend" of C.G.’s on Snapchat could view the post. Id. ¶¶ 38, 43. C.G. did not tag anyone or send the picture directly to anyone. Id. ¶¶ 40–41.

Pictures posted to Snapchat stories expire after twenty-four hours and are then automatically deleted. Id. ¶ 39. However, C.G. removed the picture within a few hours of posting. Id . That same evening he also posted an apology to his Snapchat story that stated: "I'm sorry for that picture it was ment [sic] to be a joke." Id. ¶ 45.

One of C.G.’s "friends" on Snapchat viewed the picture before C.G. deleted it and took a screenshot. Id. ¶ 43. She showed it to her father, who called the police and spread it to "others in the Jewish community." Id . ¶¶ 4, 43. Police officers responded to C.G.’s house and determined there was no threat against anyone. Id. ¶ 44.

School officials were also contacted about the picture. Id. ¶ 6. On Sunday, September 15, 2019 a CCHS student's mother emailed CCHS Principal Ryan Silva, District Chief of Staff Chris Smith, Rabbi Richard Rheins, Anti-Defamation League Regional Director Scott Levin, and others. ECF No. 32-1 at 3. The student's mother stated that the picture "ha[d] been widely circulated throughout the Jewish community th[at] weekend" and "generate[d] fear, anger, and sadness for [herself and her husband], and most importantly [her son] who ha[d] a class with at least one of the students identified in the picture." Id . The mother also referenced prior anti-Semitic activity at CCHS and asked the school to use this incident to address the rise in hate speech and hate crimes in the Cherry Creek community. Id. at 3–4; ECF No. 30 ¶ 56.

In response, Principal Silva noted that the administration's plan was to "escort the students involved from period 1 as they arrive" on the following Monday morning. ECF No. 32-1 at 1. He also explained:

When an incident happens off campus, we have to make sure there is a nexus to school. This is the case because our primary function is not to police the community. If we can make a case that there is a nexus to school, we can address a situation that happened away from school. In this case, I feel the learning environment has been impacted.

Id .

Early that Monday morning on September 16, 2019, CCHS School Resource Officer sent Assistant Principal Kevin Uhlig a copy of the picture and the subsequent apology. ECF No. 30 ¶ 48. Assistant Principal Uhlig forwarded the email, with attachments, to other school officials. Id .

Later on Monday morning, school security met C.G. at his first period class and escorted him to Dean of Students Brynn Thomas's office. Id. ¶¶ 49–50. Dean Thomas notified C.G. that he was suspended for five days through September 20, 2019 while CCHS investigated how his off-campus speech impacted the school environment. Id. ¶ 51. The suspension was premised on a violation of District policy JICDA-13, which prohibits verbal abuse by a student "while in school buildings, on school grounds, in school vehicles, or during a school-sponsored activity." Id. ¶ 52; ECF No. 32-3 at 3. C.G. asserts that he was not given the opportunity to appeal this suspension decision. ECF No. 30 ¶ 53.

At 10:30 a.m. that same day, Assistant Principal Uhlig emailed District Executive Director of High School Education Carla Stearns stating his desire to "go for an expulsion review on [C.G.]." Id. ¶ 54.

That afternoon, Principal Silva sent an email to the CCHS community, including students, parents, and staff, about the "anti-Semitic social media post over the weekend." Id. ¶ 58. Principal Silva explained that the school "was investigating to determine the impact on the school environment and will take appropriate action." Id . He emphasized that CCHS "does not tolerate hateful speech or actions," and that CCHS's "responsibility is to keep students safe and to provide a place where students of every race, ethnicity, religion, gender and sexual orientation feel safe, valued and supported." Id. ; ECF No. 32-2. Over the next few days, multiple news outlets ran stories covering the Snapchat post and three additional parents contacted CCHS about it. ECF No. 30 ¶¶ 59–60.

Meanwhile, CCHS used an advisory period on Monday, September 23, 2019 to discuss C.G.’s post and encourage conversation between students and faculty about offensive and insensitive speech. Id. ¶ 63. CCHS holds an advisory period twice a week for thirty minutes. Id. ¶ 62. The advisory periods are intended to manage the administrative and counseling tasks that have historically interrupted educational time. Id .

On September 18, 2019 Dean Thomas informed C.G.’s mother that C.G.’s suspension was being extended for five additional days through September 27, 2019 to facilitate an expulsion review process. Id. ¶ 64. Assistant Principal Uhlig sent a follow-up letter confirming this decision. Id . Neither Dean Thomas nor Assistant Principal Uhlig cited a specific policy to support the extension, so C.G. alleges that it was again based on District policy JICDA(13). Id . C.G. asserts that he was not given the opportunity to appeal this suspension extension decision. Id. ¶ 65. Specifically, C.G. argues that in violation of District policy JKD-1-R, his parents were not given notice of a time and place they could meet with Dean Thomas or Assistant Principal Uhlig to review the suspension. Id .

Later that same day, Chief of Staff Smith notified C.G. that his suspension was being extended an additional eleven school days through October 21, 2019 (which spanned CCHS's scheduled fall break) to allow for completion of the expulsion process. Id. ¶ 66. C.G. again asserts that his parents were not notified of a time and place they could meet with school officials to review the suspension. Id .

C.G. and his parents attempted to engage defendants and other CCHS and District officials about the incident. Id. ¶ 67. On September 23, 2019, C.G.’s parents sent a packet to Superintendent Siegfried, Chief of Staff Smith, District Director Sterns, Principal Silva, Assistant Principal Uhlig, Dean Thomas, and other District officials that included: a letter from C.G. accepting full responsibility for the Snapchat picture, apologizing for his behavior, explaining that it was an impulsive lapse of judgment not intended to hurt anyone, and stating that he had recently spent time educating himself about Jewish history and talking with Jewish community members and advocacy groups; a letter from C.G.’s parents reiterating C.G.’s journey of education and reticence; and letters from community members who know C.G. and his family requesting that CCHS turn this into "a learning opportunity." Id. ¶ 68. On September 24, 2019 C.G.’s mother followed up on this information and requested a meeting with District officials. Id. ¶ 69. District Director Stearns explained there would be no meeting and noted that C.G. was set for an expulsion hearing. Id .

The District held the expulsion hearing on October 7, 2019. Id. ¶ 70. At the hearing C.G. asserted that his speech was protected by the First Amendment. Id. ¶ 73. Assistant Principal Uhlig testified that CCHS was entitled to regulate off-campus speech if it had a "nexus" with the school environment, although he acknowledged that the word "nexus" does not appear in any District policy. Id . He testified that at the time he made the decision to pursue expulsion against C.G., he was unaware that C.G. had posted an apology to his Snapchat feed. Id. ¶ 71. C.G. alleges that Assistant Principal Uhlig concealed the fact that he had received a screenshot of C.G.’s apology post via email four hours before he "decided to recommend expulsion," presumably referring to the email in which Assistant Principal Uhlig recommended "go[ing] for an expulsion review." Id . ¶¶ 54, 71.

Assistant Principal Uhlig also testified that the post caused "extreme outcry of concerned community members and students...over fear to come to school" and "fear to access education." Id. ¶ 72. He did not reference specific support for this comment....