In Chen v. Albany Unified School District, published December 27, 2022, the 9th Circuit Court of Appeals affirmed summary judgment in favor of the defendant school district and associated defendants. A high school student created a private Instagram account to share memes, images, and comments with his close friends. He allowed 13 people to follow his account. He used the account to make cruelly insulting posts about various students in his school, including racist posts, including posts joking about lynching and slavery. Another student made racist comments in the group, and “liked” offensive posts. When one of the account’s followers showed posts in the group to students who had been depicted in a post with nooses, knowledge of the group’s contents spread throughout the school, causing great emotional upset and disruption. Two of the account’s followers were physically assaulted. The district voted to expel the group creator and the follower who posted racist comments. Those students filed suits against the school district defendants under 42 U.S.C. section 1983, alleging violation of free speech rights under the First Amendment and California law, as well as violation of procedural due process. The district court related those cases. It granted summary judgment for the defendants, reasoning that the district defendants could properly regulate the students’ off-campus speech.
The court of appeals agreed. The First Amendment’s protection of public school children’s speech is more limited than that of adult speech. The speech of students in a school setting may be restricted if either it might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities; or it collides with the rights of other students to be secure and to be let alone. Even outside the school setting, the First Amendment rights of minors are not co-extensive with adults’. That is especially true in connection with school activities. Students do not have a First Amendment right to target specific classmates with vulgar or abusive language. Without limiting any political viewpoint or other protected content, schools may insist on civil discourse in the school context. Here, the First Amendment would not prevent a school from punishing the sort of speech at issue if it had occurred under the school’s supervision. The content threatens the targeted students’ sense of physical, emotional, and psychological security. The threat of disruption of school activities is equally obvious (and demonstrated here). The central question is whether the off-campus nature of the speech places it outside of the school’s authority to regulate or discipline. Although schools may regulate some off-campus student speech, their authority is diminished as opposed to on-campus speech. The 9th Circuit has devised a three-factor test for determining whether off-campus speech bears a sufficient nexus to the school to allow school district regulation: (1) the degree and likelihood of harm to the school caused or augured by the speech; (2) whether it was reasonably foreseeable the speech would reach and impact the school; and (3) the relation between the content and context of the speech and the school. Under these standards, the group’s creator’s speech bore a sufficient nexus to the school to warrant disciplinary action by the school. The student’s subjective intention to keep the account private is not controlling; the court must consider whether it was reasonably foreseeable that the speech would reach and impact the school. Given the ease with which electronic communications may be copied or shown to others, it was foreseeable that the posts would ultimately reach the targeted students. Once the privacy of the account was breached, the degree and likelihood of harm to the school from the speech was significant. Because the speech caused serious or severe bullying or harassment targeting specific individuals, the school’s regulatory interests remained significant, and strongly implicated the school’s authority and responsibility to act in loco parentis in protecting students from maltreatment by classmates. A failure to respond to the harassment might have exposed it to potential liability for failure to respond adequately to a racially hostile environment. Because the student never contended that he was espousing a particular political ideology, his claim that the school was somehow censoring the promotion of a disfavored ideological message rings hollow. Although the other student’s involvement in the account was substantially more limited, his contribution properly subjected him to school discipline as well. The court rejected the students’ arguments that the school violated their rights under the California Constitution and Education Code sections 48950 and 48907. California’s free speech rights for students under those provisions do no extend further than their First Amendment rights. The creator student’s claim of violation of procedural due process fails, because the student pursued an administrative writ under California law on that point and lost. Claim preclusive bars him from relitigating that issue in the federal lawsuit. His argument that a member of the administrative body was biased against him is governed by the same procedural due process standards under federal law as under state law.
Comments