Student’s Racist Taunts on Social Media Denied First Amendment Protection
Perhaps nothing is more challenging for school administrators than off-campus student speech via social media. In Chen v. Albany School District, 56 F.4th 708 (2022), the Ninth Circuit recently wrote the latest chapter in this book.
Extensive social media posts were made by two students (Chen and Engle) to a private Instagram account. This account was created as a private account with limited access. They used it to communicate memes, images, and comments with close friends. Many of the posts and images depicted or referred to other students at the school.
For almost half a school year, the two students posted “cruelly insulting” remarks and images, many concerning their African-American classmates. These included images of a lynched man hanging from a tree, a KKK member in a white hood, as well as a post captioned “Ku klux starter pack” displaying pictures of a noose, white hood, a burning torch, and a Black doll. Other images made fun of the students’ hairstyles, calling out one girl’s ”Afro” hair style, and describing another student’s hair as “[expletive] nappy [expletive] piece of [expletive].”
Eventually, word of these posts became known to students outside of their private account. After it was discovered by these other students, they were upset, yelling, and crying. The school administrators felt the pictures could be construed as threats of violence and called the police. The school’s investigation followed, and the principal decided to expel the students.
Before expulsion hearings were held, Chen filed a federal lawsuit, and the court granted a temporary injunction, halting their expulsion. Meanwhile, Epple was expelled and then filed a federal lawsuit. Both alleged their First Amendment free speech rights were violated.
The district court granted summary judgment for the school district, and the Ninth Circuit affirmed. The Ninth Circuit decision closely tracks previous Ninth Circuit cases such as C.R. v. Eugene School District, 835 F.3d 1142 (9th Cir. 2016).
Student speech can form the basis for student discipline when that speech either (1) might reasonably lead school administrators to forecast substantial disruption of or material interference with school activities; or (2) collides with the rights of other students to be secure and to be let alone. The court noted the same words, if printed on flyers and distributed on campus, would collide with the rights of the targeted students. Though the social media account was intended to be kept private, once it became known to other students, those students were outraged, and they were negatively impacted.
In addition, the students claimed their expulsion violated the California Constitution and Education Code 48950(a) and 48907. This argument was also rejected for two reasons. First, California law follows federal law regarding student speech arising in the school setting. Dariano v. Morgan Hill Unified School Dist. 767 F.3d 764,776, fn. 4 (9th Cir.2014). Second, the Education Code did not prevent expulsion when a student engaged in harassment, threats or intimidation, that is sufficiently severe or pervasive to materially disrupt classwork, create disorder or create a hostile educational environment. Education Code 48900.
The facts of this case strongly favored the school’s actions. The speech had little (if any) purpose other than to humiliate fellow students. It did not discuss issues of importance on campus. It did not discuss school governance, student discipline, or some other legitimate topic. As described in the opinion, this was racist speech, and lots of it. The First Amendment protects speech in many forms, but not such explicit and offensive speech, even if it is intended to be done privately.
A copy of the case may be found here.
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