Briefs in Support of Stronger First Amendment Protection for Free Speech for Elementary and Secondary School Students Outside of School

The Second Circuit will hear the appeal of the district court’s decision in Leroy v. Livingston Manor School Dist.; here is the summary of the facts from Leroy’s opening brief (the relevant image is included above):

On April 19, 2021, while still a student at Livingston Manor, Leroy was chatting with three friends after school hours, away from school property. The four were in the parking lot of a dance studio to pick up the sister of one of Leroy’s friends. While there, one friend told Leroy that there had been a noise coming from his car on the way there, and Leroy lay down on the ground in front of the car to investigate. While he was there, another friend knelt on Leroy’s back and asked the third friend to take a photo.

The three friends each posted the photo to their personal Snapchat accounts, with Leroy adding the caption: “Cops got another one.”

Another posted the same image but with a “Black Lives Matter” logo superimposed. After receiving several disapproving private messages on the Snapchat platform, Leroy deleted his post and asked others to do the same, which they did. In total, the images were accessible to others for about seven minutes…

Within seven minutes of the posts being published, another Livingston Manor student, Leroy’s former girlfriend “Grace”…, took a screenshot of Leroy’s post and reposted it on Facebook and other online platforms to “condemn” Leroy. Apparently to amplify any public backlash, Grace also co-posted another out-of-context photo of two other Livingston Manor students taken by Leroy in March 2021. An activist, Gem Amber Sun Helper, reposted the images with a comment claiming that Livingston Manor “has surpassed its dark history as a sundown town with its own chapter of the KKK.” Helper or a subsequent commenter shared this post and the phone number for Livingston Manor Central School, asking viewers to direct or private message her for additional contact information.

Grace and Helper’s tactics had the desired effect on Leroy. Several people sent disapproving emails to John Evans, Livingston Manor’s superintendent, who responded with brief remarks about an ongoing investigation and a disavowal of racism at the school. The school’s principal, Shirlee Davis, and her guidance counselor, Meagan Edwards, also received similar emails. Other school administrators also received emails… The file reveals a total of 23 email exchanges between community members and school district employees.

The next morning, Davis asked Leroy not to go to school but to attend a meeting with her parents before she and Evans. During the meeting, Davis and Evans questioned Leroy about the incident. On April 21, Davis sent a letter to Leroy’s parents informing them that she was suspending Leroy for five days, the maximum allowed under state law without a hearing, for “posting racially offensive material on social media …” and referred the matter to Evans to determine whether such a hearing and additional punishment were warranted.

Due to a “buzz in the building” and rumors of a student protest in response to the Snapchat posts, Evans scheduled a brief assembly for students in grades seven through 12 “as a countermeasure.” At the assembly, Evans preached to students that racism had no place in their school. The assembly lasted about 15 to 20 minutes. A few students stayed for “a few minutes” afterward for a supervised kneeling protest.

That same day, Evans contacted Capital Region Board District Superintendent Anita Murphy to arrange a formal investigation and report into the incident. The investigator, Bethany Centrone, legal counsel for the Capital Region Board, spoke with Leroy’s father, Evans, and two other students. She relied on a review of interviews conducted by Davis and Evans and other documents to prepare her report.

In her report, Centrone found that, regardless of Leroy’s intent, his “message was directed at African Americans and was discriminatory.” She recommended that Leroy and the others involved “be referred to a superintendent to determine whether additional disciplinary action … is warranted for any or all of these students.”

After a disciplinary hearing, Evans overrode the hearing officer’s recommendation and banned Leroy from school and extracurricular activities, including his graduation ceremony (although a New York state court enjoined the graduation ceremony ban).

The Hamilton Lincoln Law Institute, which represents Leroy, posted its brief and amicus briefs on its website; they include briefs from the ACLU (national); FIRE, the Manhattan Institute, and the National Coalition Against Censorship; several First Amendment scholars; the Liberty Justice Center; and the Center for Individual Rights and myself.