9^th Circuit Court Upholds District Court’s Decision to Impose Student Discipline for Off Campus Speech

In 2021, the U.S. U.S. Supreme Court issued its decision in Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 141 S. Ct. 2038, 2045, 210 L.Ed.2d 403 (2021), which  concerned a public high school’s ability under the First Amendment to discipline students for “private” off-campus social media posts that made their way on to campus and were determined to amount to “severe bullying or harassment targeting particular” classmates.  The Supreme Court in Mahanoy rejected the categorical rule that “the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off-campus.” Instead, the Court identified three features of off-campus speech that “diminish the strength of the unique educational characteristics that might call for special First Amendment leeway” in evaluating a school’s actions.

• First, because “off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility,” a school will “rarely” be able to invoke the “doctrine of in loco parentis”—i.e., that the school “stand[s] in the place of students’ parents”—in attempting to regulate such speech.
• Second, recognizing broad authority in schools over off-campus speech would give them authority over “all the speech a student utters during the full 24-hour day,” (which would threaten students’ ability to “engage in that kind of speech at all”) including potentially “political or religious speech that occurs outside school or a school program or activity.”
• Third, schools have both an interest in protecting and an obligation to protect “the ‘marketplace of ideas,”  which “must include the protection of unpopular ideas,” and that important interest would be threatened by excessive school authority over off-campus speech.

Chen v. Albany Unified School District, — F.4th —-2022 WL 17957458 (9th Cir. December 27th, 2022) is one of the first appellate decisions since the Supreme Court’s ruling in Mahanoy. Cedric Epple and Kevin Chen were students at Albany High School (“AHS”).  Epple created a private Instagram account to share comments “privately with my small group of friends.” Unlike Epple’s “ ‘main’ Instagram account,” which he used to “share images that are appropriate for a wide audience,” he intended this new account, which operated under the username “yungcavage,” to be “a private forum where [he] could share funny memes, images, and comments with [his] close friends that [they] thought were funny, but which other people might not find funny or appropriate.” Over the ensuing months, Epple only allowed about “13 people to follow the account,” including Chen.

Between November 2016 and March 2017, Epple used the account to make a number of cruelly insulting posts about various AHS students. These ranged from immature posts making fun of a student’s braces, glasses, or weight to much more disturbing posts that targeted vicious invective with racist and violent themes against specific Black classmates. For example, in early February 2017, Epple uploaded a photograph in which a Black member of the AHS girls’ basketball team was standing next to the team coach, who was also Black, and Epple drew nooses around both their necks and added the caption “twinning is winning.” In another post, he combined (1) a screen shot of a particular Black student’s Instagram post in which she stated “I wanna go back to the old way” with (2) the statement “Do you really tho?”, accompanied by a historical drawing that appears to depict a slave master paddling a naked Black man who is strung up by rope around his hands. On February 11, 2017, he posted a screenshot of texts in which he and a Black classmate were arguing, and he added the caption “Holy s–t I’m on the edge of bringing my rope to school on Monday.” Other posts, although not referencing specific students, contained images either depicting, or making light of, Ku Klux Klan violence against Black people. One post included what appears to be a historical photograph of a lynched man still hanging from a tree; another depicts a Klan member in a white hood; and a third combines the caption “Ku klux starter pack” with pictures of a noose, a white hood, a burning torch, and a Black doll.

The court detailed significant disruption caused by the posts.  On March 20, the student who had been targeted in the post containing a drawing of a slave being abused left school early because she “was too upset to return to class.” She also reported being afraid to go to one of her classes because the students in that class included one who had favorably commented on a post that included a photograph of a hooded Klansman. Another Black student stated that she missed multiple days of school after learning that a post made fun of her “Afro” hair style and her physical appearance, and her parents eventually withdrew her from AHS. Other students targeted by the posts reported that they felt “devastated,” “scared,” and “bullied,” and that their grades suffered. According to an administrator, “[t]he AHS school counselors and mental health staff were inundated with students needing help to handle their feelings of anger, sadness, betrayal and frustration about the racist posts and comments in the Instagram account.” The impact, according to the Superintendent was that parents stated they were afraid for their children’s safety on campus and off-campus. They stated that their children were traumatized and could not study, and that they were 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 were now worried about failing their classes. Some students could not return to school for several days. Most of the students said they were hurt, angry and felt betrayed. One parent reported that his daughter had lost sleep; that sometimes she could talk about the incident and sometimes she was too upset to talk at all about the postings.

Epple and Chen were suspended and ultimately expelled.  They sued, claiming that Defendants violated their free speech rights under the First Amendment, the California Constitution, and the California Education Code. They argued that their speech was not susceptible to regulation because they engaged in it off-campus, and therefore Defendants could not constitutionally discipline them.  The district court ruled in favor of the school defendants and they appealed to the 9^th Circuit Court of Appeals.

Prior to Mahanoy, the 9^th Circuit devised a three-factor test for determining, based on the totality of the circumstances, whether [off-campus] speech bore a sufficient nexus to the school to allow regulation by a school district. The relevant considerations include:

(1) the degree and likelihood of harm to the school caused or augured by the speech,

(2) whether it was reasonably foreseeable that the speech would reach and impact the school, and

(3) the relation between the content and context of the speech and the school.” (citations omitted).  The court found that the existing test was compatible with Mahanoy and determined that Epple’s speech bore a sufficient nexus to AHS to warrant disciplinary action by the school.

The court also upheld discipline of Chen who argued that his involvement was much more limited.  The court concluded he was properly subjected to discipline and there was a sufficient nexus to AHS for the school to impose discipline.  Chen contributed to the Instagram account multiple times in ways that were directly related to AHS. He took a picture of a Black student during class, without her permission, and captioned it in the Snapchat app with the statement, “She’s eating a f–king carrot.” Epple thereafter posted that Snapchat screenshot to the account. Chen commented “Its too good” on a post comparing a specific Black classmate to a gorilla, and he responded to another student’s criticism of that post with the statement, “f–k YOU you dirty zookeeping son of a b–ch.” Chen called a non-Black student a “n—-r” after that student guessed (incorrectly) that he created the account; and he “liked” a post in which Epple called a Black classmate a “n—-r.”

Although Chen’s participation in the targeted abuse of specific students in these posts was much less than Epple’s, he affirmatively liked two such posts and denounced, in vulgar terms, another follower who criticized one such post. At the very least, Chen was akin to a student who eggs on a bully who torments classmates. A school may properly take account of such affirmative participation in what ended up, after the account became known, as abusive harassment targeted at particular students. Additionally, several of the targeted students stated that the severity of the hostile environment they experienced was exacerbated by the knowledge that other students participated in the account and “liked” the abusive posts. As with Epple, Chen’s conduct had a sufficient nexus to AHS and, under Tinker, was properly subject to discipline.

Although providing additional clarity in light of the Supreme Court’s decision in Mahanoy, whether off-campus speech via social media is sufficiently disruptive justify imposition of discipline by a school will necessarily involve analysis of all of the facts and the determination will be fact specific.  One distinction between Mahanoy and Chen is the disruption created in the school environment from the disclosure of the off-campus speech.  In the former, there was minimal disruption, while in the latter, there was significant disruption.  Should questions arise regarding the discipline of off-campus speech, please contact Leon Alcala for further guidance.

Author: Hans Graff