Colorado students can be expelled for social media posts after-hours | #childpredator | #onlinepredator | #sextrafficing

By the time criminal defense attorney Jamie Hubbard stepped into a Denver courtroom in December 2023, hoping to sway a jury’s opinion in favor of her young client, the traditional bell no longer marked the end of school oversight for many American children.

Students’ social lives, and their mistakes, continue to play out across evenings and weekends via the many social media platforms that now give school administrators a lens into their pupils’ lives — and the ability to police their speech and behavior off campus.

Hubbard’s client, who The Denver Post is not identifying because he was a minor at the time, was no exception. As a 16-year-old, he had posted an antisemitic comment on Snapchat while out with friends one night in 2019.

Despite the app’s disappearing messages, the post still made its way to Cherry Creek Schools administrators within days and they expelled the teen.

“Kids have a right to go to public school and they have a right to hold opinions about things that their classmate might not like,” Hubbard told jurors, according to the trial’s transcript. “You can’t allow schools to suspend and expel someone who holds an opinion that might offend their classmate. The First Amendment doesn’t allow for that.”

Colorado school administrators are watching and disciplining students for what they post on social media, a precaution district leaders say is necessary because what happens online — bullying, fighting, other potential threats — can spill into their hallways the next day. Yet school systems across metro Denver don’t have clear and consistent guidelines regarding students’ social media use, leaving teenagers in the dark about the risks they take when they post online outside of school, a Post investigation found.

It’s unclear how frequently schools discipline students for something they post on social media, as the Colorado Department of Education doesn’t track when their misbehavior takes place online or elsewhere off campus. But The Post identified more than half a dozen teenagers who were either suspended or expelled in the past seven years over social media posts. 

Attorneys and advocates argue that school districts violate students’ First Amendment right to free speech when they remove kids from the classroom over something they wrote or shared online. The suspensions and expulsions also highlight the authority Colorado gives K-12 districts to discipline students for their behavior outside of school, an ability advocates say has only expanded with the rise of social media.

Districts in Colorado can discipline students’ off-campus behavior as long as there is what’s called a “nexus” to campus, a term so loosely defined that both district leaders and student advocates say the decision to suspend or expel a student for misbehavior outside of school is a judgment call. Educators said their decision-making has become even more difficult due to deepening political divisions and the fact that adolescents are increasingly exposed to racism and extremism online.

“It can feel fairly subjective at times as a building administrator to make the right decision,” said Bret Heller, superintendent of the Thompson School District in Loveland. “…It often feels like a no-win situation.”

Schools’ authority to discipline students for online speech and misbehavior off campus matters because suspensions and expulsions can hurt a teenager’s ability to go to college or negatively affect their sense of belonging, a key factor in preventing suicide and violence among adolescents, according to mental health experts and student advocates.

“I can’t recall a time where we went to an expulsion hearing where a social media post wasn’t discussed,” said Elie Zwiebel, a juvenile rights attorney in Denver. “It is absurd that a social media post could be grounds to sever a student from their education.”

But a lawyer for Cherry Creek Schools argued in that 2023 trial that the district has a duty to more than just a single student. K-12 systems must have the ability to protect all who make up a school community and, sometimes, that means expelling a student, attorney Jonathan Fero said during what is believed to be one of the first jury trials involving K-12 students and online speech in the U.S. 

“Harm can come from many directions,” he told the jury. “As this case demonstrates, social media can invade schools.”

Most districts lack standalone social media policies

School districts across Colorado have sought to curb teenagers’ social media use in recent years.

They’ve sued the companies that run platforms, including Snapchat and Instagram, alleging the apps hurt students’ mental health. They banned cellphones in class or school buildings entirely. Most districts also crafted standalone social media policies for their employees.

But K-12 leaders who spoke to The Post said creating districtwide social media policies for students wades into the murky area of regulating their rights, personal values and politics.

“Everybody has First Amendment and free speech protections,” said former Denver Public Schools Deputy Superintendent Tony Smith. “They’re kids. They’re sometimes making ill-informed decisions. They’re expressing themselves. They’re not at school and school doesn’t replace the parent.”

The Post reviewed student handbooks, codes of conduct, discipline matrices and other policies for the 15 public school systems in metro Denver to understand how districts regulate online speech.

Among the findings:

• Only two districts — Aurora Public Schools and the Sheridan School District — had standalone policies regarding students’ social media use. The districts didn’t address off-campus speech beyond Sheridan’s warning to students: “Don’t post anything you wouldn’t want your grandmother to see.”
• Districts mostly relied on a broader set of policies, such as those for student newspapers, cellphones and cyberbullying, to limit student speech. Until revisions for the 2026-27 school year, some of these policies were so outdated they still referenced beepers, PDAs (personal digital assistants) and Zunes (a portable music player discontinued 15 years ago), rather than social media platforms — Instagram and TikTok — more commonly used by teens today.
• Districts’ policies on violent and aggressive behavior occasionally mentioned social media as it related to verbal threats.
• Three districts — DPS, Westminster Public Schools and Adams 12 Five Star Schools — were the most explicit in stating pupils can be suspended or expelled for online speech in their discipline matrices, but none had a standalone social media policy.
• All 15 systems mentioned in their policies that students can be punished for off-campus behavior if there is a “nexus” to the school or district, but they rarely defined the term.

Several K-12 officials said their districts lacked standalone social media policies for students because the platforms used by teenagers change rapidly and, ultimately, when school officials discipline students, they are doing so because their online behavior violated another code of conduct, such as bullying.

“We’d probably change policies every week if we tried to stay on top of every platform,” Sheridan Superintendent Gionni Thompson said.

But students who spoke to The Post said they hadn’t realized principals, school resource officers and other district administrators were paying attention to what they shared online.

One student said it’s common for teenagers to post on social media about where they are, what they are doing and “a lot of the problems being a teen.”

He didn’t realize a video he posted on Instagram of himself vaping marijuana off-campus would lead to his expulsion from a metro Denver district in 2024. The Post is not identifying students in this story who are either still minors or were at the time they were disciplined for sharing something online.

“For kids in my generation, there’s no problems at school,” the now-18-year-old said. “It’s outside of school.”

‘It cost me years of education’

Attorney Chris Sponheimer’s stepson was a sophomore when he was suspended for two days from Loveland High School in 2024 after texting a meme with a racist slur to his friends on the cross-country team.

The text was sent during a team dinner at a friend’s house, but it wasn’t a school-sanctioned event, Sponheimer said. Students, he said, just wanted to hang out before a meet.

Sponheimer’s stepson later told him he shared the meme in an attempt to be funny and didn’t understand why the school suspended him.

“It’s a stupid word. He shouldn’t have said it,” Sponheimer said. “…He’s a good student by all means. It wasn’t like he was a troublemaker. This was a first time for him.”

Heller, the superintendent of Loveland’s Thompson School District, declined to comment on the case involving Sponheimer’s stepson, citing student privacy laws. But he acknowledged the district doesn’t have a social media policy for students.

“There is an element of telling kids what they can and cannot post,” Heller said about the lack of a policy. “There is some element of free speech. Our focus is more on the impact of the behavior rather than the platform or mechanism of the behavior.”

A metro Denver district expelled a teenager in 2023 after he posted videos of himself in off-campus fights and of guns.

“It cost me years of education,” said the student, who was expelled because of the fight videos. The 17-year-old said he was kicked out of his home and fell into what he called “street life” after he was removed from school for behavior that took place off-campus.

“I don’t think it’s fair at all,” he said.

Colorado school districts write their own discipline policies. Some, such as DPS and Westminster, have matrices, which are guidelines school leaders use to determine appropriate disciplinary action for different misbehaviors.

Under Westminster’s discipline matrix, students can get in trouble for social media posts by violating the district’s policy on inappropriate materials. A student who violates the policy by posting on social media can get the same punishment — being removed from school for at least half a day or expulsion — as a student who carries out a first-degree assault or rape, or brings a weapon to campus, according to the matrix.

“The level reflects the severity of the conduct, whether it is repeated, whether it involves threats or intimidation, and the degree of impact on the school community,” Westminster spokesman Ryan McCoy said. “Not every social media incident results in removal from school; many are addressed through restorative practices, safety planning, parent engagement and education around digital citizenship.”

The Post’s analysis of discipline policies found that almost all metro-area districts mention free speech in their policies and place limits on speech, such as prohibiting student newspapers from publishing obscene or libelous material.

When it comes to student speech outside of student publications or fliers and posters, districts’ policies state that students can be disciplined for speech that veers into verbal abuse, cyberbullying, harassment or threats.

District policies don’t specifically address student speech that is deemed offensive, such as the posts made by the students at Cherry Creek Schools and Loveland High School.

When asked by The Post whether they would discipline a student for racist or otherwise offensive speech, district leaders’ answers boiled down to: it depends.

There has to be a nexus — or connection — to school, they said, for administrators to suspend or expel a student for misbehavior outside of school.

But even then, the answer can be ambiguous. If a student makes a comment on social media that is derogatory toward a group of people — say, immigrants or Jews — does the fact that a school has immigrant or Jewish students enough to create a nexus?

“People can argue either way,” Heller said.

Cherry Creek Schools argued in court that it did.

A high-profile case

Cherry Creek High School in Greenwood Village is the flagship of Colorado’s fourth-largest district. Roughly 3,760 students attend the school, most of them affluent and white.

Cherry Creek struggled with antisemitism among students before Hubbard’s client posted to Snapchat on a Friday night in 2019, and parents were frustrated by the district’s lack of action, the attorney told the jury four years later.

The then-16-year-old was out with friends at a thrift shop when he posted a photo on Snapchat with an antisemitic phrase. One of the student’s followers saw the photo, took a screenshot and shared it with her father. The post made its way to school administrators before classes resumed the following Monday.

Cherry Creek High suspended the student, then expelled him for three months.

“It was a Friday night,” Hubbard told the jury in 2023. “He posted the picture to his private social media Snapchat story not using any school equipment. He didn’t tag the school in the post. Nothing to do with the school.”

The most severe punishment districts can give students is an expulsion, which removes them from school for a longer period than an out-of-school suspension. Under state law, schools can expel students for as long as an entire year, but only suspend them for up to 10 days and, in certain extreme cases, 25 days.

The former Cherry Creek student declined an interview request. The newspaper reviewed court documents related to his case, including transcripts of the trial.

The district declined to make someone available for an interview. Instead, Cherry Creek Schools provided a statement that said the district “cannot restrict the First Amendment rights of students; however, we reserve the right to discipline students if their behavior, either in-person or online, is disruptive to a school environment and/or is considered harassment under state and federal law.”

In its response to The Post, Cherry Creek Schools also pointed to a ruling in February by the Colorado Court of Appeals, which affirmed the district’s decision to expel another high schooler because of a social media post. In that case, Cherry Creek High expelled a freshman in 2024 after she posted on social media that she planned to “shoot up the school,” starting with her math teacher.

Suspensions in Colorado schools jump 25% as districts struggle to staff since pandemic

The district also disciplined at least two other students for something they posted online, according to court records.

The district suspended a 17-year-old girl in 2019 after she posted a photo on Snapchat of her and her brother, a military veteran, wearing shemaghs — head coverings worn in the Middle East — and holding guns before going to a firing range.

Cherry Creek also suspended a 14-year-old for two months and initiated expulsion proceedings after she recorded a video during Thanksgiving break in 2023 that featured two classmates who were intoxicated and used racist slurs.

The then-eighth-grader did not make racist comments in the video herself, according to a lawsuit filed against Cherry Creek Schools in May. The video was shared with a student not at the gathering during a later school day, and that student’s sister posted the video to Snapchat, the lawsuit states.

Colorado state statute says there must be a nexus to a school or district, and a student’s conduct has to be “detrimental to the welfare or safety of other pupils or of the school personnel,” for a school to have the authority to discipline a student for off-campus behavior. K-12 administrators who spoke to The Post acknowledged the definition of nexus is up for interpretation and can put students at a disadvantage.

DPS, the state’s largest district, offers the most detailed explanation of a nexus in its discipline policies compared to other districts in metro Denver.

“We got courageous,” said Jane Lineman, the district’s student safety coordinator.

The district defines a nexus as this: An incident that happens near a school campus, or one that required school resources to respond to, or when speech dovetails into bullying, harassment or threats. A nexus can also be found if a “substantial disruption” is caused via speech, including on social media, according to DPS’s discipline matrix.

School administrators might become aware of off-campus situations involving students, but not every case has a connection to school and, in theory, shouldn’t trigger a disciplinary action, Lineman said.

For example, a nexus can be determined when a student posts a photo of a gun to their social media account, and the image shows the firearm was on campus, Lineman said. But if the gun wasn’t on campus, then there is no nexus and staff shouldn’t punish the student, she said.

Like online speech, disciplining someone for having a gun outside of school can veer into violating a student’s constitutional right to bear arms, Lineman said.

“People have a right to bear arms,” she said. “What you’re responsible for as kind of a school employee who’s supporting a family is making sure they’re knowledgeable around safe storage, supervision and some of the laws that could impact their child if they’re not kind of complying with what those regulations are.”

When it comes to on-campus speech, schools must reach a high threshold to discipline a student. The U.S. Supreme Court ruled in Tinker vs. Des Moines that students keep their constitutional rights to freedom of speech and expression when they enter a school building. The 1969 decision, made after a school suspended students for wearing black armbands to protest the Vietnam War, set a precedent that school officials cannot censor student speech unless it disrupts the education process.

More recently, in 2021, the Supreme Court ruled a Pennsylvania school district violated a cheerleader’s First Amendment rights by suspending her for a social media message sent while off school grounds, but the court stopped short of barring schools from disciplining students for off-campus speech entirely.

Such lawsuits are rare as parents either don’t have the financial means to challenge disciplinary action in court or lack the appetite for such a measure as it can thrust their child — and their alleged misbehavior — into public view, education attorneys said.

But Ian Prior, an attorney representing the 14-year-old in her recent lawsuit against Cherry Creek, said schools are “daring students and parents to take them to court” by continuing to discipline students for their online speech.

“(Schools) will look at case law and rulings coming from the Supreme Court and rulings from the Court of Appeals and they will essentially ignore them and do what they are going to do and hope they don’t get sued,” said Prior, who is with the conservative America First Legal group.

‘Hurt feelings’ or a threat?

Hubbard had selected the jury with care when the Cherry Creek Schools trial began on Dec. 4, 2023 — more so than normal. Twenty-nine people showed up for jury duty that morning, and she wanted to make sure that the eight individuals selected to hear the case could be fair to her client after the Oct. 7 attacks on Israel two months earlier.

At the time, members of Congress were heavily criticizing American universities for their response — or lack thereof — to pro-Palestinian protests and student speech on campus in the wake of the attacks. In fact, that same week, as Hubbard argued Cherry Creek violated her client’s First Amendment right to free speech by expelling him, three university presidents were more than 1,600 miles away at the U.S. Capitol testifying about whether they discipline students calling for the genocide of Jews.

“This is a hard time to be trying this case,” Hubbard later recalled thinking.

In the courtroom, Cherry Creek’s attorney argued the presence of the expelled student in class risked disrupting the learning environment of the high school after his antisemitic Snapchat post circulated over the weekend.

“Free speech is an important right, to be sure, but as you’ve been instructed, the school environment is special,” Fero, the district’s attorney, told the jury. “There the government has an interest in protecting the educational mission of schools, ensuring student safety and preserving a learning environment free of discrimination.”

Hubbard disagreed.

“Hurt feelings are not enough,” she told the jury. “Someone being offended does not allow you to overcome First Amendment protected speech. The First Amendment explicitly allows you to offend other people.”

So much of the act of disciplining students for off-campus misbehavior lives in a gray space, and the challenge of determining when school administrators should take action is made much harder when online speech is involved because of the deep divisions that pervade today’s political climate, district officials said.

Schools increasingly face pressure from parents and community organizations to take action when a student makes a comment online that expresses views they dislike. Schoolhouses have become flashpoints for such debates as the Trump administration has threatened to pull education funding from universities that failed to quell pro-Palestinian protests and from K-12 districts with policies supporting transgender students.

At the collegiate level, the University of Denver initiated discipline proceedings against a different client of Hubbard’s a year after the Cherry Creek trial. In that case, the student, Kristina Brunner, was accused of being antisemitic by a Jewish student after she called him a Zionist during the pro-Palestinian protests and encampments that took place on DU’s campus.

Brunner, who was a law student at the time, said she was targeted by parent groups on Facebook that disagreed with the pro-Palestinian protests, which made her feel unsafe on campus and led to panic attacks.

“I felt chilled in the sense that I didn’t participate in the encampment,” she said.

In the end, DU did not discipline Brunner, but she still had to report the investigation to the Colorado Bar Association after she graduated from the university in May.

Attorneys argue that students’ First Amendment rights allow them to say things that others disagree with — even when their comments are offensive and racist. When government entities like schools start policing such speech, then people start losing what was once a wide-reaching right bit by bit, Hubbard said.

“Even when we can all objectively agree that what is said is wildly offensive and something that I wish nobody ever said, I think it’s really important to push back and protect the boundaries of our First Amendment right because we don’t always know who’s setting those boundaries,” she said.

District officials said offensive speech turns into a potential threat when both the physical and psychological well-being of students are at risk. This includes when students skip school because they no longer feel safe because of what their classmate wrote online, said Lineman, DPS’ student safety coordinator.

Social media platforms themselves also present a challenge for schools when students post offensive speech.

Students have always fought and they’ve always said things they shouldn’t. But harmful words that used to be shared in a note stuck inside someone’s locker are now broadcast beyond school walls via group chats, memes and social media apps.

“So the impact of my action to another person then becomes the impact on the entire social group,” said Robbyn Fernandez, former assistant superintendent of schools for the Boulder Valley School District. “…It influences the ability to resolve or not resolve that issue.”

The jury’s verdict

The Denver-area teen who posted a video of himself vaping marijuana was expelled after he returned to school in 2023 following a stint in jail. Back in school, the now-18-year-old said he felt like he was being watched by school administrators.

Once, he said, there was a fight at school. He recorded it and posted the video online. School administrators found out about the post and told him to stop.

The day after he posted the video of him vaping off-campus, a resource officer told him at school that police had a warrant for his arrest. He went to jail again and was expelled in 2024. In jail, the student said he began losing sleep. He felt anxious and claustrophobic.

He has now changed how he uses social media.

“I don’t post no pictures of my face,” he said.