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Judge Backs Discipline of Students Who Posted or ‘Liked’ Online Racial Taunts

By Mark Walsh — December 01, 2017 2 min read

A federal district judge has upheld the expulsion of a California high school student who created an Instagram account that targeted African-American students and school staff members with racist and derogatory comments, including the use of images of nooses, Ku Klux Klan hoods, and comparisons of the black students to gorillas.

Judge James Donato of U.S. District Court in San Francisco also upheld suspensions of five students who “liked” or otherwise expressed approval of the racist posts. But the judge threw out the suspensions of four other students who had merely followed the account or commented on posts that didn’t target specific individuals. He also threw out the suspension of a student who had merely read some of the offensive posts.

The judge held that the Instagram account created off-campus by a student identified as C.E. had indisputably caused a disruption at Albany High School in northern California in the 2016-17 school year. He analyzed the facts under both a “nexus” test and a “reasonable foreseeability” test to determine that the Instagram account caused a substantial disruption at Albany High.

“The followers were mainly AHS students, and the posts featured 10 different AHS students as well as school personnel,” Donato wrote. “Some of the most offensive posts—for instance, the image of nooses drawn around the necks of an African-American student and an African-American basketball coach—depicted school activities and were clearly taken on campus, even if not posted to Instagram from campus.”

An Albany High student who was a follower of the private Instagram account showed some of the images to two of the targeted female students, and word quickly spread around the school.

“That the disruption fell short of a full-scale riot is also of no moment,” the judge said, noting that under the U.S. Supreme Court’s landmark 1969 student speech decision in Tinker v. Des Moines Independent Community School District, the disruption that allows school administrators to discipline student speech need not be “when the school is in flames or out of control.”

School officials brought in mental-health counselors and sponsored a “restorative justice” session for the disciplined students, which didn’t go so well in the sense that those students received threats and some were subject to physical assault.

The disciplined students sued the Albany Unified School District and school officials on First Amendment grounds, arguing that the Instagram posts and responses were protected free speech.

The judge said his Nov. 29 decision in Shen v. Albany Unified School District was intended to resolve only the free speech issues and that some other issues remain to be resolved.

But the judge said schools have a responsibility to protect students not only from acts of violence or assault, but also harassment and bullying.

Donato said that while even offensive social media posts have First Amendment protection outside school, “students have the right to be free of online posts that denigrate their race, ethnicity or physical appearance, or threaten violence. They have an equivalent right to enjoy an education in a civil, secure, and safe school environment.”

A version of this news article first appeared in The School Law Blog.

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