Students Can Be Disciplined for Racist Instagram Account Despite All Posts Being Made Off Campus During Non-School Hours

Category: Private Education Matters
Date: Jan 31, 2018 03:51 PM

In November 2016, a student referred to as “C.E.” at Albany High School (AHS), a public school in northern California, created an Instagram account with the handle @yungcavage.  He invited several AHS students to follow the private account. By March 2017, around 9 students had access to the account, some who were C.E.’s friends and others who were acquaintances.  In those 5 months, C.E. made around 30-40 posts, which all included derogatory, racist comments and many of which targeted AHS students or employees.  Sometimes the student’s or employee’s picture was included.

Some examples of these offensive posts include: A picture of a school coach and student (both African-American) with nooses around their necks that said “twinning is winning;” multiple comparisons of African-American women and students to gorillas; and a screenshot of an iPhone spelling correction page showing the word “nigger” being changed to “nibbler” and captioned “Making my texts more black friendly.”

Ten different AHS students were depicted in the account and some of the images were taken on school property.  While C.E. made all the posts, other students liked or commented on the posts.  The parties did not dispute that C.E. posted all images and comments to his account off school property and not during school hours.  The supposedly private account became public knowledge in March 2017 when one person who followed the account showed two AHS students, both of whom were African-American. News spread quickly and students were enraged and distraught.  Angry and upset students gathered in the hallway and the commotion was the first time the school principal learned of the account and its effects.

C.E. deleted the account the evening after it became public knowledge.  By June 2017, the school had suspended each of the account’s followers.  C.E. and the followers sued the school, claiming the discipline violated their First Amendment rights. The followers had all liked or commented on the posts, except for one who had access to the account but never interacted with it beyond viewing it.  He was suspended as well.

The court explained that public school students do have free speech rights, but that a long line of cases has laid out the tests for determining how to balance those rights against the safety and well-being of the student population as a whole. Different types of speech are analyzed differently, and while the notion of speech being “off-campus” was a component of the earlier cases, in today’s advanced technological world, the court noted that these black and white notions of on or off campus are no longer as relevant.

The first test the court used relates to the nexus between the speech and the school. Then the court analyzed whether it was reasonably foreseeable that the speech would affect school.  The court agreed that the Instagram activity falls under the First Amendment. Liking posts and commenting on them are forms of expression covered by the First Amendment because they convey the user’s agreement or enjoyment or approval. There was only one account follower who did not like or comment on any post.  The court found that his reading of the material is covered activity of the First Amendment, and was troubled by the school’s decision to discipline him.

After finding the speech involved was protected activity, the court went on to explain why the Instagram activity was school speech. The account was created by and followed by AHS students, and those targeted in the posts were also AHS students and employees. Some posts were directly related to school events and some images were taken on campus. This shows a nexus to school life and made it reasonably foreseeable that the speech might reach school.  Even though the account was set up as private, the court noted that everyone knows that nothing can guarantee the privacy of content posted online.

Under current case law, speech may only be the cause for discipline if it risks a substantial disruption of the school environment or violates the rights of others to be secure. The court emphasized that, in general, schools are also responsible for preventing harassment and bullying.  As to the right to discipline C.E., the court found no question that the school was within its rights to expel him. Students were so upset by the posts that the school had to call in mental health counselors.  The court also found the school had the right to discipline those students who liked or commented on the posts that specifically targeted AHS students. Students have the right to be free of being targeted due to their race or ethnicity and to enjoy a safe and secure environment.  The commenters who approved of C.E.’s posts disrupted those rights.

For the followers who did not approve of or comment on any posts targeting AHS students, the court drew a distinction, noting that endorsement of generally offensive or noxious speech is different from encouraging speech that targeted specific students.  These followers did not create a risk of substantial disruption from their conduct.  AHS was not granted summary judgment as to those four students, as well as the student who did not engage in any activity on the posts.

Some of the students argued that even if their discipline was constitutional, recording the discipline in their permanent records was not. But these students pointed to no events or facts that would justify updating their records with new information showing that their suspensions or expulsion were mistaken. The court denied the request to remove disciplinary records.

Even though this case involved public school students, the court also addressed Education Code 48950 and 48907, which provide free speech protection to high school private school students.  The court noted that these statutes are really just endorsements of the line of case law the court used in reaching its conclusion in this matter.

Shen v. Albany Unified School Dist., et al., 2017 WL 5890089.

Note:

This is one of the few cases to directly address the Education Code sections 48950 and 48907 relating to private school speech. From the reasoning, in this case, schools can see that courts will generally apply the same standards used in the public school setting when determining if a student’s free speech rights have been violated by disciplinary action.  Schools should be careful when disciplining high school students in particular for activity that occurs online during non-school hours.  Tying such discipline to school policies such as a policy against harassment or discrimination or anti-bullying can support the school’s decision to discipline for so-called “off-campus” speech. While this case involved a public school, the Education Code specifically provides free speech protections to private school high school students.

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