A federal appeals court has upheld a California school district’s discipline of two high school students over an off-campus Instagram account with racist imagery and comments targeting their Black classmates.
A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, unanimously rejected the students’ arguments that the off-campus speech was protected by the First Amendment and not subject to school discipline. It said the U.S. Supreme Court’s 2021 decision in Mahanoy Area School District v. B.L., which overturned the discipline of a student for her off-campus social media rant about her cheerleading team, still left room for schools to regulate bullying of students on social media.
The Instagram account at issue included “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,” the court said in its Dec. 27 decision in Chen v. Albany Unified School District.
The case involves a private Instagram account started in the fall of 2016 by Albany High School student Cedric Epple, which was meant as a forum to share funny thoughts and images with close friends he approved to “follow” the account. Over that school year, Epple used the account for insulting posts, including pictures of Black classmates accompanied by slavery images and nooses. Epple also used the N-word and posted other images, not about specific students, that referenced the Ku Klux Klan and lynchings of African Americans, court papers say.
Kevin Chen was one of 13 approved followers of Epple’s Instagram account, and Chen sometimes posted “likes” of Epple’s posts and took an unauthorized photo of a Black student in class and posted it on Epple’s Instagram site with a racist message, according to court papers.
By March 2017, the contents of Epple’s account spread well beyond his approved followers, and disruption at the school soon followed. Some Black students were crying and were afraid to go to class. School administrators took statements from the students and investigated the Instagram account. The principal suspended Epple and Chen and told them he would recommend them for expulsion. Epple was expelled that June by the Albany Unified School District board, while Chen’s proceedings were delayed by a temporary restraining order.
Lawsuits filed on behalf of Epple, Chen, and a few other student followers of the account who were suspended but not expelled were consolidated, and a federal district judge ruled in favor of the school district on the students’ free speech claims.
The 9th Circuit decision, which is based on appeals by Epple and Chen, upholds the district court.
On-campus speech vs. off-campus
Judge Daniel P. Collins, writing for the panel, said that there was no question that under the Supreme Court’s landmark 1969 decision on student speech in Tinker v. Des Moines Independent Community School District, that Epple and Chen could be disciplined for their speech had it occurred on campus.
“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 wrote. “Had these posts been printed on flyers that were distributed furtively by students on school grounds but then discovered by school authorities, the collision with the rights of the targeted students to be secure and to be let alone would be obvious.”
Because the speech originated off campus, the panel analyzed the case under Mahanoy and a 2019 9th Circuit decision that allows schools to regulate off-campus speech when it has a sufficient connection, or nexus, to school. Collins observed that Mahanoy did not set a broad definition for when off-campus speech could be regulated, but did suggest school officials had more leeway when there was substantial disruption on campus or when there was a threatened harm to the rights of others.
The combination of the leeway left by Mahanoy and the 9th Circuit’s nexus test “strongly support the school’s assertion of disciplinary authority here,” Collins said. “Once the privacy of [Epple’s Instagram] account was breached, and knowledge of the posts rapidly (and predictably) spread, the degree and likelihood of harm to the school caused or augured by the speech was significant.”
Collins went on to say that “once Epple’s posts hit their targets, the school was confronted with a situation in which a number of its students thereby became the subjects of ‘serious or severe bullying or harassment targeting particular individuals’— which Mahanoy specifically identifies as an ‘off-campus circumstance’ in which ‘the school’s regulatory interests remain significant.’”
The court also held that Chen’s conduct had a significant connection to school to warrant his discipline by school officials.
Judge Ronald M. Gould signed the majority opinion and wrote a concurrence warning of the dangers of “hate speech,” especially racial and anti-Semitic speech.
“Hate speech has no role in our society and contributes little or nothing to the free-flowing marketplace of ideas that is essential to protect in a school environment,” Gould said.
