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Ninth Circuit:
Students May Be Disciplined for Off-Campus Instagram Posts
Collins Says Racist Speech Had ‘Sufficient Nexus’ to School and Students to Avoid Violation of First Amendment
By a MetNews Staff Writer
A school district did not abridge the First Amendment rights of two students by disciplining them for off-campus social media posts viciously denigrating certain African American classmates, the Ninth U.S. Circuit Court of Appeals held yesterday.
Circuit Judge Daniel P. Collins wrote the majority opinion in which Superior Court Judge Roslyn O. Silver of the District of Arizona, sitting by designation, joined. In a concurring opinion, Circuit Judge Ronald M. Gould denounced “hate speech.”
Cedric Epple and Kevin Chen were two of 10 students of Albany High School (“AHS”) in Alameda County who were disciplined for their racist posts on an Instagram account, dubbed “yungcavage,” that was intended to be accessible by only 13 pupils. Each was suspended except Epple, who created the account; he was expelled.
The students sued the Albany Unified School District for alleged violations of the First Amendment, the California Constitution, and a California Education Code section; seven settled with the district and dismissed their actions; of the remaining three, only Epple and Chen appealed from an order by District Court Judge James Donato of the Northern District of California order granting summary judgment in favor of the district.
There is no question, Collins said, that the students could have been disciplined had their activity taken place on campus. It did not matter, he declared, that it occurred off-campus given that “the speech bore a sufficient nexus to AHS and its students.”
Collins’s Explanation
Explaining why the First Amendment would not shield the students from discipline had the conduct occurred on the schoolgrounds, the jurist wrote:
“The posts in the yungcavage account include vicious invective that was targeted at specific individuals and that employed deeply offensive and insulting words and images that, as used here, contribute nothing to the ‘marketplace of ideas.’…Moreover, some of the posts used violent imagery that, even if subjectively intended only as immature attempts at malign comedy, would reasonably be viewed as alarming, both to the students targeted in such violently-themed posts and to the school community more generally. In particular, combining photographs of specific students with images drawing upon the horrific legacy of terroristic violence executed by the Klan against Black people would understandably be deeply upsetting and intimidating to the targeted students.”
Collins noted that “[o]nce the privacy of the account was breached, and knowledge of the posts rapidly (and predictably) spread” and the harm was “significant.” He quoted Albany Unified School District Superintendent Valerie Williams as saying:
“From my meetings with the students that were shown in the postings and conversations with several parents of the students, the impact has been significant and ongoing. Parents stated they are afraid for their children’s safety on campus and off campus. They stated that their children are traumatized and cannot study, and that they are afraid to be in the same class or on the same campus as the students who posted. Several of the students’ grades dropped because they were unable to attend school or some classes, and they are now worried about failing their classes. Some students could not return to school for several days. Most of the students say they are hurt, angry and feel betrayed. One parent reported to me that his daughter has lost sleep, that sometimes she can talk about the incident and sometimes she is too upset to talk at all about the postings.”
In light of the “sufficient nexus” to the school, Collins wrote, summary judgment was appropriate.
Supreme Court Decision
He acknowledged that last year, the U.S. Supreme Court in Mahanoy Area School District v. B.L. ex rel. Levy held that summary judgment was properly granted to a student who sued over discipline imposed based on a profane social media post by her. It occasioned by her not being chosen for the school’s varsity cheerleading squad. Justice Stephen G. Breyer wrote, for the majority:
“Given the many different kinds of off-campus speech, the different potential school-related and circumstance-specific justifications, and the differing extent to which those justifications may call for First Amendment leeway, we can, as a general matter, say little more than this: Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished.”
Collins said:
“Nothing in Mahanoy is inconsistent with our sufficient-nexus test, much less ‘clearly irreconcilable’ with it…. Properly applied, our sufficient-nexus test avoids the concerns that the Court identified about school regulation of off-campus speech.”
Reliance by Epple and Chen on California’s constitutional analogue of the First Amendment is to no avail, Collins said, because California courts apply First Amendment precedents in interpreting the state provision (Art. I, §2(a)).
The plaintiffs also cited California Education Code §48950(a) which bars discipline of a student “solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.”
The posts by Epple and Chen were not “protected from governmental restriction by the First Amendment,” so the Education Code provision did not apply, Collins said, adding that the challenge also fails in light of §48950(d) which says:
“This section does not prohibit the imposition of discipline for harassment, threats, or intimidation, unless constitutionally protected.”
The case is Chen v. Albany Unified School District, 20-16540.
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