(Illustrative) Students graduating from a high school in Denver, Colorado in 2021. Photo: Reuters/Kevin Mohatt

A United States appeals court has ruled that a Colorado school’s expulsion of a student for posting an antisemitic Snapchat failed the “substantial disruption test” established by the Supreme Court to assess whether disciplinary measures for offensive speech violate the First Amendment.

The incident took place in 2019, when a student at Cherry Hill High School in the Denver metropolitan area — identified as “C.G.” — captioned a picture 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 spread through the community and eventually appeared on the radar of the Anti-Defamation League Mountain States division, which alerted the Arapahoe County Sheriff’s Office.

The sheriff’s office determined that C.G. did not pose an immediate threat to the Jewish community, but school administrators suspended him for violating the school’s prohibition on verbally abusive speech, and following a hearing, expelled him for one year.

The boy’s family sued Cherry Hill School District, arguing that it violated his First Amendment rights. The case was dismissed in US District Court in August 2021 — prompting the recent appeal in which the 10th US Circuit Court of Appeals on Wednesday struck down the previous court’s decision, ruling that “offensive, controversial speech can still be protected” and “these facts do not support a reasonable forecast of substantial disruption that would warrant dismissal of the complaint.”

“Moreover,” the court continued, “C.G.’s post did not include weapons, specific threats, or speech directed toward the school or its students.”

The 10th US Circuit Court based its ruling on Wednesday on Mahanoy Area School District v. B.L., in which the Supreme Court ruled that school regulations of off-campus speech require sufficient “special interest,” and Tinker v. Des Moines Independent Community School District, the landmark 1969 decision that created the substantial disruption test after several students were suspended for wearing black armbands to protest the Vietnam War.