BY AND THROUGH SERS v. ALBUQUERQUE PUBLIC SCHOOLS BOARD OF EDUCATION (2025)

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

This matter requires the Court to consider whether First Amendment protections extend to the puerile and profane Snapchat messages a student sent while off student grounds. For the following reasons, and based on the specific facts presented, the Court finds in the affirmative and grants the Application for Temporary Restraining Order and Preliminary Injunction (“Application”). Doc. 2.

BACKGROUND

On November 12, 2024, high school senior N.S. had an argument with another student in the Volcano Vista High School's (“Volcano Vista”) Activities Office. Doc. 1 at 6 ¶ 18. According to N.S., although it was not a physical fight, “tempers rose, and voices were raised.” Id. The following day, Activities Director and Student Senate Advisor George Woods told N.S. that she would be suspended from Student Senate activities occurring outside of the school day for the remainder of the fall semester. Id. ¶ 20.

A couple days later, while in her bedroom, N.S. sent a Snapchat message to six of her friends with a picture that was captioned “me when [I] try to quit senate but get begged not to step down, and then woods still ends up suspending me anyway for being ‘disgraceful’ fuck u and ur trash ass senate program.”¹ Id. at 7 ¶ 23. Perhaps feeling some contrition, N.S. deleted the message later that same evening. Id.

N.S. and her parents subsequently met with Volcano Vista Principal Melissa Sedillo, Volcano Vista's Assistant Principal, and Director Woods.² Id. ¶ 25. The original purpose of the meeting was to address N.S.’s argument with her classmate and the resulting discipline, but the focus shifted. Id. Principal Sedillo had obtained a screenshot of N.S.’s Snapchat message and that became the primary topic of discussion. Id. at 7-8 ¶ 25. After back-and-forth with N.S. and her parents, Principal Sedillo indicated that she would confer with Woods regarding potentially removing N.S. as Student Body 1st Vice President. Id. at 8 ¶ 25. The next day, Principal Sedillo confirmed she would be moving forward with that course of action. Id. ¶ 27. That punishment had additional ramifications for N.S. She was forced to withdraw from her fifth-period Student Senate Community Service class, id. at 10 ¶ 35, and she would be precluded from giving a commencement speech at graduation. Doc. 2 at 2.

N.S. subsequently sued Albuquerque Public Schools Board of Education, Principal Sedillo, and Director Woods (collectively “Defendants”).³ Doc. 1 at 1. N.S. also filed the Application contemporaneously with her complaint. See generally Doc. 2. She alleges that Defendants are unlawfully punishing her for her private Snapchat message—that is, for her speech—in contravention of the First and Fourteenth Amendments to the United States Constitution. Doc. 1 at 2; Doc. 2 at 2. N.S.’s Application seeks to enjoin Defendants from pursuing their contemplated course of discipline against her. Doc. 2 at 8; see also Doc. 1 at 12.

ANALYSIS

To obtain a preliminary injunction, the movant must show “(1) a substantial likelihood of success on the merits, (2) irreparable injury in the absence of the injunction, (3) its threatened injury outweighs the harm to the opposing party under the injunction, and (4) the injunction is not adverse to the public interest.” First W. Cap. Mgmt. Co. v. Malamed, 874 F.3d 1136, 1139 n.2 (10th Cir. 2017). The burden is on the movant, and “the right to relief must be clear and unequivocal” due to the extraordinary nature of preliminary injunctions as a remedy. Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003).

I. N.S. satisfies the four elements required to obtain a preliminary injunction.

A. N.S. is substantially likely to prevail on the merits.

It is axiomatic that “students do not shed their constitutional rights to freedom of speech or expression even at the school house gate.” Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 594 U.S. 180, 187 (2021) (quotation marks omitted). Still, “the First Amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings and must be applied in light of the special characteristics of the school environment.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (quotation marks and citations omitted). Those “unique educational characteristics” afford schools some “First Amendment leeway” when it comes to regulating a student's speech. Mahanoy, 594 U.S. at 189. That authority is at its apex when regulating speech on campus, is lessened when a student's speech occurs off school grounds, but may nevertheless “remain significant in some off-campus circumstances.” Id. at 188.

Neither the United States Supreme Court nor the Tenth Circuit provides a specific analytical framework for determining when a school may properly regulate a student's off-campus speech. Instead, district courts must assess the specific facts presented including the where, when, and how the speech occurred. Cf. id. at 189 (declining to delineate “what counts as ‘off campus’ speech and whether or how ordinary First Amendment standards must give way off campus to a school's special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up a school community”). There are, however, a couple general principles that can be gleaned from decisional authority. First, off-campus speech that is likely to cause a serious disruption or threaten a student's rights may be subject to school oversight. Id. at 188. Second, speech that “include[s] serious or severe bullying or harassment targeting particular individuals [and] threats aimed at teachers or other students” may implicate a school's regulatory interests Id.; cf. Kutchinski ex rel. IH.K. v. Freeland Cmty. Sch. Dist., 69 F.4th 350, 359 (6th Cir. 2023) (explaining that a school official “reasonably forecasted that a fake Instagram account” would cause substantial disruptions considering that the account impersonated a teacher and “directed sexual and violent posts at three ․ teachers and a student”).

The Supreme Court's decision in Mahanoy illustrates the application of these legal principles to similar facts. There, a high school student posted two Snapchat stories about her school and its cheerleading program while at a local convenience store (i.e., off campus). Mahanoy, 594 U.S. at 18384. Dismayed that she had not made the varsity cheer squad, B.L. first created a post wherein she raised her middle finger with the caption, “Fuck school fuck softball fuck cheer fuck everything.” Id. at 185. B.L.’s second post displayed a blank image captioned, “Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn't matter to anyone else?” Id. (alterations in original). After learning about the Snapchat stories, the school suspended student B.L. from the cheerleading team. Id. B.L. filed suit, asserting that the First Amendment protected her speech and thus could not be constitutionally punished.⁴ Id. at 185-86. The matter made its way to the Supreme Court, with the majority finding in B.L.’s favor Id. at 193-94. In reaching its decision, the Supreme Court explained that the special characteristics allowing schools to regulate students’ speech are diminished when such conduct occurs off campus.⁵ Id. at 189. Declining to provide a general rule governing the regulation of a student's off-campus speech, the Mahanoy Court found that under the facts presented, the school's interests in promoting good manners, preventing disruption, and fostering team morale did not overcome B.L.’s “robust First Amendment protections.” Id. at 193.

The Mahanoy facts plainly align with those presented here. N.S.’s Snapchat message is nearly identical to B.L.’s in content (criticizing a school program and disparaging those running it), in form (B.L. sent a public Snapchat story available to roughly 250 people while N.S. sent a private Snapchat message to six friends), and in time and place (B.L. made the Snapchat story from a convenience store on the weekend and N.S. sent the message from her bedroom at around 8:37 P.M.). Doc. 2 at 5; Mahanoy 594 U.S. at 184-85.

What is more, the Supreme Court's justifications for its Mahanoy decision are similarly applicable. N.S.’s private message did not cause a disturbance at the school (save for the time that teachers and administrators spent considering N.S.’s punishment). Doc. 2 at 2-6 (showing that N.S.’s Snapchat did not meaningfully disturb the school's operations or predict future disorder). Defendants did not stand in place of N.S.’s parents. Mahanoy, 594 U.S. at 189 (explaining that a school “will rarely stand in loco parentis, i.e., in the place of parents”). And although N.S. used crude language to outright reject the Student Senate program and Woods, she did not bully, threaten, or harass in any way that might reasonably presage future disruption. Cf. id. at 188 (noting a “school's regulatory interests remain significant in some off-campus circumstances,” and that the parties as well as the amici listed several types of off-campus speech, some of which included “serious or severe bullying or harassment targeting particular individuals” or threats). Given these similarities, the Court can discern little reason to reach a different result in this matter.

Nevertheless, Defendants assert that this case is distinguishable because N.S.’s speech specifically identifies Director Woods and his Senate Program. Doc. 8 at 8. They characterize the distinction as dispositive, and they point to the facts in Kutchinski, 69 F.4th at 354-55, as “more analogous” to the instant matter. Id. Defendants’ comparison is off base. Kutchinski involved “sexual and violent posts [directed] at three [school] teachers and a student.” 69 F.4th at 356-60.⁶ That conduct differs markedly from N.S.’s outburst, which though childish, is absent of the threats or bullying at issue in Kutchinski.

Defendants cite another Sixth Circuit decision, Lowery v. Euverard, 497 F.3d 584 (6th Cir. 2007), to support their claims that “[s]chool officials were reasonable in forecasting a substantial disruption of school activities due to Student N.S.’s SnapChat post.” Doc. 8 at 9. Again, this case addresses disparate facts.⁷ In Lowery, students on a high school football team started a petition calling for the removal of their coach, specifically writing, “I hate Coach Euvard [sic] and I don't want to play for him.” 497 F.3d at 585. The Sixth Circuit found that the school reasonably forecasted that the petition would threaten Coach Euverard's authority and produce team disunity. Id. at 600-01. But the students in Lowery made a call to action by demanding that the school fire the coach, a characteristic notably absent in this case. Id. at 591.

Ultimately, N.S.’s speech does not meaningfully differ from that considered in Mahanoy as her Snapchat message did not bully, harass, threaten others, and it lacks a serious Lowery-like call to action (seeking termination of a coach's employment). Consequently, the Court finds no reason to depart from the reasoning or conclusion in Mahanoy. N.S.’s off-campus speech is protected by the First Amendment.

B. N.S. will experience irreparable injury without the injunction.

“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). See also Pryor v. Sch. Dist. No. 1, 99 F.4th 1243, 1254 (“[A]ny potential loss of First Amendment freedoms—however small—also establishes irreparable injury.”) (citing Elrod, 427 U.S. at 373); Roman Catholic Diocese v. Cuomo, 592 U.S. 14, 19 (2020) (explaining that if the United States Supreme Court were to allow the enforcement of unconstitutional First Amendment restrictions, those subjected would be irreparably harmed). And, as discussed above, the Court has determined that Defendants have likely violated N.S.’s First Amendment rights. Accordingly, the Court must logically conclude that “irreparable injury is likely in the absence of an injunction” and that. N.S. thus satisfies the second element needed for a preliminary injunction.⁸ Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (emphasis removed); see Legacy Church, Inc. v. Kunkel, 455 F. Supp. 3d 1100, 1163 (D.N.M. 2020) (“[C]ourts should interpret the ‘irreparable harm’ factor in conjunction with whether the movant is likely to succeed on the merits.”).

C. N.S. losing her First Amendment rights significantly outweighs any harm Defendants might experience by the Court issuing this preliminary injunction, and such relief serves the public interest.

The third element of a preliminary injunction requires N.S. to show that the Court not issuing the preliminary injunction poses a significantly greater harm to her than its issuance threatens Defendants. First W. Cap. Mgmt. Co., 874 F.3d at 1139 n.2. The fourth factor requires that N.S. show that “the injunction is not adverse to the public interest.” Id. “These factors merge when the [g]overnment is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009).

The Court finds that N.S. satisfies the third and fourth elements. N.S. shows that she will likely have her First Amendment rights infringed upon (her injury) if the Court fails to issue the injunction, which the public is interested in preventing. Cf. Homans v. City of Albuquerque, 264 F.3d 1240, 1244 (10th Cir. 2001) (“Having determined that [Plaintiff] has demonstrated a substantial likelihood on the merits, we believe that the public interest is better served by following Supreme Court precedent and protecting the core First Amendment right of political expression.”). Further, N.S. will suffer tangible harm including exclusion from school activities. Doc. 2 at 6.

Meanwhile, Defendants provide no convincing explanation of the equitable considerations relevant to them or of the attendant harms they will suffer if the Court provides N.S. with her requested relief. Defendants claim that the Court issuing the injunction will strip them of authority to ensure that students receive their education in a productive setting characterized by deference to teachers, coaches, advisors, and faculty members aiming to create cooperation and cohesion among the students and members. Doc. 8 at 18-19. But those claims are purely speculative,⁹ and when “free speech is at stake, the law places a heavy thumb on the scale favoring injunctive relief. Indeed, an injunction that protects First Amendment freedoms is always in the public interest.” Ind. Right to Life Victory Fund v. Morales, 112 F.4th 466, 472 (7th Cir. 2024) (text only); see also Planned Parenthood Ass'n of Utah v. Herbert, 828 F.3d 1245, 1265 (10th Cir. 2016) (“In our view, the possibility of [the plaintiff's] First Amendment rights being irreparably harmed outweighs any opposing interests asserted by defendants.”).

In light of the preceding, the Court finds that an injunction protects N.S. from suffering a constitutional injury, cf. Elrod, 427 U.S. at 373-74; inflicts no injury upon Defendants, as such an injunction merely prevents Defendants from regulating off-campus, non-bullying, non-threating speech; and benefits the public interest. See Homans, 264 F.3d at 1244 (noting how the public has an interest in individuals having their First Amendment rights protected). N.S. therefore satisfies the third and fourth preliminary injunction elements.

II. Defendants must reinstate N.S. as Student Body 1st Vice President and restore any benefits attendant to that position.

Defendants likely unconstitutionally punished N.S. for her Snapchat message criticizing Woods and the Senate Program. Defendants must therefore undo those disciplinary measures that were taken because of N.S.’s Snapchat message. Correcting these constitutional wrongs means immediately reinstating N.S. as Student Body 1st Vice President and restoring the privileges commensurate with that position. See Doc. 2 at 2 (explaining the discipline N.S. received for her private Snapchat message); Doc. 1 at 8.

CONCLUSION

The Court finds that N.S. is substantially likely to prevail on the merits of her lawsuit and will suffer irreparable injury if the Court does not grant the requested injunctive relief. Additionally, the Court finds that the threat of N.S. being stripped of her constitutional rights outweighs any harm Defendants might experience from not being able to punish her for her off-campus private Snapchat message. Finally, the Court concludes that issuing this preliminary injunction serves—not adversely affects—the public interest.

The Court therefore grants N.S.’s Application, Doc. 2, and relief is to be afforded in accordance with this opinion. It is so ordered.

FOOTNOTES

1.   N.S. sent the message at approximately 8:40 P.M.

2.   This meeting occurred on November 18, 2024. Doc. 2 at 5.

3.   N.S. sues Sedillo and Woods individually and in their official capacities as school officials. Doc. 1 at 1.

4.   Although the district court and the Third Circuit Court of Appeals reasoned differently, both sided with B.L. Mahanoy, 594 U.S. at 185-186 (citing B.L. ex rel. Levy v. Mahanoy Area Sch. Dist., 964 F.3d 170, 194 (3d Cir. 2020)).

5.   Mahanoy provides three reasons as to why. First, a student's off-campus speech is typically to be monitored and disciplined by the student's parents, i.e., a school rarely stands in the place of parents when students speak off campus. Mahanoy, 594 U.S. at 189. Second, allowing a school to regulate a student's speech off campus as well as on is to allow a student to have their speech policed every second of every day, which is undesirable. Id. at 189-90. And third, as promoters of democracy and its core tenets, schools should be in the business of promoting free speech, not chilling it. Id. at 190. (For analogous support of the latter idea that schools should stand behind the First Amendment's free speech protections in order to ensure that a society and its members maintain a robust political life, consider Harvard Law Professor Noah Feldman's First Amendment lectures, which teach that Supreme Court Justice Louis Brandeis believed, and best explained in his concurrence in Whitney v. California, 274 U.S. 357, 372-377 (1927) (Brandeis, J., concurring), that the greatest justification for the First Amendment's protections is its ability to ensure that people can engage civically. Noah Feldman, Felix Frankfurter Professor of Law at Harv. L. Sch., Lectures in Constitutional Law: First Amendment (Fall 2022)).

6.   To describe just a few (which the Court is loath to do given the content), one post displayed a teacher, his wife, and their child and bore the caption, “[j]ust #gangbanged my wife with 4 other men in the back of an Arby's #notmykid #14inches;” another photo showed a disabled student and was captioned, “[g]lad this sicko is out of our school #ass[a]ult #Blessed;” and an additional post featured a photo of the football coach and a substitute teacher with the caption, “I will find and kill @_treyanderson_ [I'm] going to strangle him with my barehands [sic] until he is barely conscious, then let go. Once he is awake again [I'm] gonna run him over with my fucking car and crush [h]is skull into a million pieces. #lol @elite_edge.” Kutchinski, 69 F.4th at 354-55 (alternations in original).

7.   The Lowery decision predates Mahanoy.

8.   N.S. and Defendants agreed at oral argument on January 21, 2025, that if the Court found the first element satisfied, then it must also find this second element met. See Doc. 14. This aligns with Tenth Circuit case law as well. See, e.g., Verlo v. Martinez, 820 F.3d 1113, 1126 (10th Cir. 2016) (“In the First Amendment context, ‘the likelihood of success on the merits will often be the determinative factor’ because of the seminal importance of the interests at stake.” (citing Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013))).

9.   Undoubtedly, other students have criticized teachers and administrators in off-campus communications with their peers. They just have not been caught.

MATTHEW L. GARCIA, UNITED STATES DISTRICT JUDGE