The Byron White United States Courthouse in Denver, Colorado. Photo: Dtobias / Wikimedia Commons

A Colorado student is appealing a district court’s dismissal of a free speech lawsuit over his expulsion from high school due to an antisemitic Snapchat post made off campus, according to a local report.

In 2019, the Cherry Hill High School student — identified as “C.G.” — captioned a Snapchat Story of his three friends wearing hats and wigs, “Me and the boys bout to exterminate the Jews.”

He deleted the image and apologized hours later in another post, but it was shared by his friends and brought to the attention of parents and Cherry Hill High administrators, and ultimately the Anti-Defamation League Mountain States division, which alerted the Arapahoe County Sheriff’s Office.

After interviewing the student, police determined he did not pose an immediate threat to the Jewish community, but school administrators suspended him for violating school policies against verbally abusive speech. Following a hearing, the school later expelled C.G. for one year, finding him in violation of prohibitions on hazing, intimidation, and obscene comments.

A suit from the boy’s family against the Cherry Hill School District, arguing that its decision violated the First Amendment, was dismissed in US District Court in August 2021 — prompting the recent appeal.

Submitted to the 10th Circuit Court of Appeals in September, with the Colorado ACLU, Foundation for Individual Rights in Education, and the Cato Institute each filing an amicus brief on the family’s behalf.

“The ACLU brief concedes that the speech in question is undeniably offensive, but maintains that the detestable nature of the speech here cannot justify diminishing the First Amendment’s protections for young people,” it said. “Outside of school-supervised settings, young people have the right to express themselves without being punished for their ideas, and other young people and adults have the right to hear what they have to say.”

On Monday, Scott Levin, the Regional Director of ADL Mountain States, told the Sentinel Colorado that while the ADL is “very much a pro-First Amendment organization,” the student’s Snapchat post demeaned victims of Holocaust victims and hurt the local Jewish community.

“Holocaust jokes are never appropriate, and unfortunately they are all too prevalent at this time” he said. “We are hoping that when this came forward and was made public it could be a teachable moment for students and others about the inappropriateness of Holocaust analogies.”

Legal experts told the outlet that the family’s chances of prevailing on appeal were relatively high because of the case’s similarity to Mahanoy Area School District v. B.L., in which the Supreme Court recently ruled that school regulations of off-campus speech require sufficient “special interest.”

Said Cherry Creek High School spokesperson Abbe Smith, “The District prevailed in this matter involving First Amendment issues at the trial court level and we hope that the 10th Circuit will uphold that decision.”