Government Liability Update

School District's Recission of COVID Vaccination Policy Did Not Render Employee Challenge Moot

In Health Freedom defense Fund, Inc. v. Carvalho, published June 7, 2024, a divided panel of the 9th Circuit Court of Appeals reversed a district court order granting judgment on the pleadings.  The plaintiffs challenged  the defendant California school district's mandatory COVID-19 vaccination policy.  The district reversed course on the policy multiple times.  The district court held that under Jacobsen v. Massachusetts (1905) 197 U.S. 11, rational basis review applied to a vaccination program.  It rejected the plaintiffs' contention that the COVID-19 vaccine is not a vaccine because it allegedly does not prevent disease, but instead mitigates it and is therefore a medical treatment.  The district court relied on CDC documents the district submitted, of which it took judicial notice.  After the oral argument of the case, the defendant district rescinded its COVID-19 vaccination policy.

The majority held that the case was not moot.  The district twice rescinded the policy when facing litigation risk, including after oral argument.  The majority deemed this a tactical manipulation of the federal courts invoking the voluntary cessation exception to mootness.  The district did not carry its heavy burden of showing it would not revert to imposing a similar policy.  On the merits, accepting the allegations in the complaint as true, the Jacobsen rule for vaccination programs did not apply.  The judicially noticed documents did not contradict the complaint's allegations sufficiently to rebut them.  The majority remanded the case to the district court.  A concurring judge raised the possibility that the district had sovereign immunity to the suit.  Another concurring judge opined that the allegations in the complaint were sufficient to invoke the plaintiffs' liberty right to be free of unwanted medical treatment.  A dissenting judge opined the case was moot.

Due Process Requires a Timely Forfeiture Hearing after Seizure for Civil Forfeiture, but Not a Preliminary Hearing

In Culley v. Marshall, published May 9, 2024, the U.S. Supreme Court affirmed the dismissal of the plaintiffs' claims under 42 U.S.C. section 1983 seeking damages for violation of due process.  Both plaintiffs were innocent vehicle owners whose vehicles were seized under civil forfeiture because they loaned the vehicles to drivers who possessed or were trafficking drugs.  In both cases, the state promptly filed forfeiture cases, but the cases took time to resolve.  The plaintiffs contended that the state violated due process by retaining their vehicles until the forfeiture hearings without first holding a preliminary hearing.

The majority held, 6-3, that in civil forfeiture cases involving personal property, due process requires a timely forfeiture hearing, but does not require a preliminary hearing.  The court relied both on its precedent discussing forfeiture hearings and on historical practice.

Two justices concurred in the decision, but wrote separately to criticize civil forfeiture.  Three justices dissented, opining that due process requires a retention hearing before the state holds personal property for months or years pending a forfeiture hearing.

Employee's Voluntary Demotion to Avoid Dismissal Did Not Require a Skelly Hearing

In LaMarr v. Regents of the University of California, ordered published April 23, 2024, the Third Appellate District affirmed a trial court's decision after a bench trial.  The plaintiff was working as a coordinator Level V at a UC hospital's department.  Her supervisor prepared but did not issue a Letter of Intent to Dismiss, based on performance issues.  The supervisor's superior was concerned that this was an unusually expedited discipline procedure.  The superior sought a transfer for the plaintiff to a different department, to defuse the situation.  There were no Level V positions available, but he found a Level III position at another department that he offered to the plaintiff on a temporary basis at her Level V salary.  He did not inform the plaintiff of the letter of intent to dismiss.  The plaintiff took the position.  The superior later discussed with the plaintiff making the position permanent.  He informed her that if she stayed in the department, she would be a coordinator Level III with a lower salary.  He informed her that her options were to do that; move back to the previous department as a coordinator Level III with the lower salary; or move back to the previous department as a Level V coordinator, but be subject to the "pending action" (the notice of intent to dismiss) that was put on hold and never issued.  This was the first the plaintiff learned of the letter of intent.  The plaintiff stated she would remain at the transferred department, so that she would not return to the "hostile atmosphere" of her previous department.  Both the plaintiff and the superior knew that the plaintiff would be given a Skelly hearing if the supervisor had moved forward with issuing a notice of intent to dismiss.  She sued the Regents, alleging they violated her due process rights by not providing her with a Skelly hearing before her demotion.  The trial court found against her.

The appellate court ruled that the trial court's decision was supported by substantial evidence.  Plaintiff was never notified of an intent to terminate, and any demotion was voluntary.  The unissued letter of intent did not trigger a right to a Skelly hearing.  The voluntary demotion was an adverse result, but due process did not require a hearing before the demotion, because due process is not required where the employee has voluntarily surrendered the property interest upon the existence of which the procedural rights depend.  Although the choice was a difficult one for the plaintiff, a difficult choice is not the same as an involuntary choice.  Although the plaintiff contended that her acquiescence was obtained involuntarily, because she was not told about the letter of intent or that her transfer at normal pay was temporary, the truth was revealed to her and she was given the option of transferring back to her old department with the same title and pay before she made her choice.  She therefore made the choice with full knowledge of the consequences.  The entity does not violate due process until it takes an adverse action without providing the Skelly safeguards.  That her previous supervisor merely considered the adverse action of issuing a notice of termination did not entitle her to a Skelly hearing.  It was the plaintiff's prerogative to either risk termination and receive a Skelly hearing, or voluntarily accept the transfer and not have a hearing.

Social Workers Not Entitled to Absolute or Qualified Immunity for Failing to Give Parent Notice of Juvenile Court Detention Hearing or Misrepresenting Reason for Failure

In Rieman v. Vasquez, published March 5, 2024, the 9th Circuit Court of Appeals affirmed denial of absolute and qualified immunity to the defendant social workers.  The plaintiff infant fell off a bed.  His mother (a plaintiff) and grandmother took him to a hospital, which examined him but did not perform any diagnostic studies.  A nurse at the hospital, as a mandated reporter, reported the incident to the county Child and Family Services.  A defendant social worker went to the family's home and advised the mother to take the baby to another hospital for further evaluation.  The family asked to speak to the social worker's supervisor.  The mother, grandmother and the mother's stepfather drove to the office to meet with the supervisor.  On the way, they made an appointment for the baby to be seen by a doctor.  The family met with the defendant supervisor, who urged them to consider taking the baby to to the hospital to be evaluated by another doctor.  The CFS representives did not not inform the family that CFS would seek a warrant if the mother did not take the baby to the hospital.  After the family left, the supervisor and social worker applied for a detention warrant.  Based on the application, the juvenile court issued a temporary detention warrant for the child.  Law enforcement and the social worker attempted multiple times that day and the next morning to serve the warrant at the mother's home address, without success.  The social worker then prepared a juvenile dependency petition and detention report, scheduling a detention hearing for the morning after the petition and report were filed.  In the report, which the supervisor and social worker signed, they claimed the mother was not noticed for the detention hearing  because her whereabouts were unknown.  They listed a different telephone number than the one listed for the mother in the original referral CFS compiled.  Meanwhile, the family tried to contact CFS on several occasions.  The supervisor and social worker never called or otherwise attempted to notify the mother of the detention hearing.  The mother did not appear at the hearing.  At the hearing, the court ordered the child to be detained and placed in CFS's custody, issued a warrant of apprehension, and set the matter for another conference nearly a month later.  The mother learned of the hearing two days after the hearing.  Soon after hearing of it, the mother provided CFS with additional medical records for the child.  CFS representatives told her that the issue was out of their hands, and CFS could not withdraw the warrant.  The mother took the baby to the hospital, where she was forced to relinquish the child to a law enforcement officer.  The baby was returned almost two months later.  The mother and baby sued the social worker and supervisor under 42 U.S.C. section 1983 alleging violation of their 14th Amendment rights by failing to provide notice of the detention hearing and providing false information to the juvenile court about why the mother was not noticed for the hearing.  The district court denied the defendants' motion for summary judgment based on absolute and qualified immunity, and granted the plaintiffs' motion for summary judgment, ruling the plaintiffs' 4th and 14th Amendment rights were violated.

The 9th Circuit agreed that the defendants were not entitled to absolute or qualified immunity.  They were not entitled to absolute prosecutorial immunity for initiating the juvenile dependency proceeding.  Social workers may enjoy absolute immunity from suit when they make discretionary, quasi-prosecutorial decisions to institute court dependency proceedings to take custody away from parents.  But the defendants were not sued for instituting the dependency proceedings; they were sued for failing to provide notice and for acts of judicial deception regarding the mother's whereabouts.  These actions and omissions are not similar to discretionary decisions about whether to prosecute, and so are not subject to absolute immunity.  The defendants were not entitled to qualified immunity, because they violate the mother's clearly-established right to notice of the dependency hearing before she was deprived  of custody of her child, and violated the plaintiffs' clearly-established right to be free from deception in the presentation of evidence during juvenile dependency hearings.

Because Violation of 14th Amendment Through State-Created Danger Doctrine Was Not Clearly Established, Officer Entitled to Qualified Immunity

In Martinez v. High (Martinez II), published January 26, 2024, the 9th Circuit affirmed the district court's grant of qualified immunity to the defendant police officer.  The plaintiff was in a relationship with another police officer in the same department as the defendant.  She made multiple calls to the police department to confidentially report domestic abuse.  On one occasion, the abuser telephone the defendant officer on speakerphone, in front of the plaintiff.  During the call, the abuser asked the plaintiff if she was "telling the cops" about the abuse, and she responded, "No."  The defendant officer interjected, "Yes, she did.  I see a report right here."  The defendant officer further told the abuser that another police officer was under investigation for lying about a "romantic relationship" with the plaintiff.  Immediately after the call, the abuser inflicted physical and sexual abuse upon the plaintiff.  The plaintiff sued the defendant officer and other officers for violating her 14th Amendment substantive due process rights.  All of the officers moved for summary judgment on qualified immunity grounds.  The district court granted summary judgment for all officers except the defendant officer here.  In a prior decision, the 9th Circuit affirmed the grant of summary judgment to the other officers based on qualified immunity, ruling that the officers violated the plaintiff's due process rights by their acts but that the violation was not clearly established in 2013, when the conduct took place.  Martinez v. City of Clovis (Martinez I) (9th Cir. 2019) 943 F.3d 1260.  On remand, the district court granted a second motion for summary judgment filed by the defendant officer here, based on qualified immunity.  The plaintiff appealed.

The 9th Circuit affirmed the district court's exercise of its discretion to permit the officer to make a second summary judgment motion.  It further affirmed qualified immunity.  On the first prong of qualified immunity, the panel majority held that, viewing the facts in the light most favorable to the plaintiff, the defendant officer violated the plaintiff's 14th Amendment substantive due process rights under the state-created danger doctrine.  State actors are generally not liable for failing to prevent acts of private parties.  To establish the state=created danger exception to this rule, a plaintiff must prove that a state actor's affirmative conduct exposed the plaintiff to a foreseeable danger she would not have otherwise faced; and that the officer acted with deliberate indifference in doing so.  The panel majority ruled that the defendant officer's conduct in telling the plaintiff's abuser of the plaintiff's confidential domestic violence report, after hearing the plaintiff say "no" when the abuser asked if she was "telling the cops" of the abuse, put the plaintiff at risk of violent retaliation.  The risk was foreseeable because the officer knew the abuser was an alleged abuser who had been arrested for domestic abuse, subject to a restraining order, and that the plaintiff was in the same room with the abuser when the officer disclosed the report.  Further, the officer acted with deliberate indifference by disclosing the information despite the known danger, for no apparent reason other than to discredit the plaintiff.  But the panel found the officer entitled to qualified immunity under the second prong of the immunity.  In 2013, no case law established beyond debate that the officer's conduct would violate the 14th Amendment under the state-created danger doctrine.  A 9th Circuit case that involved a police officer disclosing a report to an alleged perpetrator about a plaintiff's allegations against the perpetrator did not suffice, because in that case there was an additional aggravating circumstance that the police assured the plaintiff they would patrol the area that night and keep an eye on the alleged perpetrator.  Here, that aggravating circumstance was not present.  Going forward, the 14th Amendment violation will be clearly established.

A concurring judge opined that the state-created danger doctrine was improper.

Prison Officials Are Not Entitled to Qualified Immunity to Guard's Family's Claim for Introducing COVID into a Prison

In Polanco v. Diaz, published August 7, 2023, a split panel of the 9th Circuit affirmed a district court decision denying a motion to dismiss a 42 U.S.C. section 1983 against state prison officials .  A few months into the COVID-19 Pandemic, high-evel officers in the state prison system transferred 122 inmates from one prison, where there was a widespread COVID-19 outbreak, to another prison, where there were no known cases of the virus.  Allegedly, the officials had been briefed on the risks COVID posed in a prison setting; the necessity of taking precautions such as social distancing, masking, and testing; and that containing an outbreak at the target  prison would be particularly difficult due to its design.  Most of the transferred inmates had not been tested for three weeks.  The inmates were allegedly packed onto buses, where some showed symptoms of COVID en route.  The officials did not quarantine the incoming inmates.  They placed nearly all in a housing unit with grated doors instead of solid doors, and had them use the same showers and mess hall as other inmates.  The county health officer recommended that the transferred inmates be sequestered and that exposed inmates and staff be required to wear masks.  The state officials allegedly ordered that the county health official be told he lacked the authority to mandate measures in a state-run prison.  A COVID outbreak at the prison ensued.  During the outbreak, officials were notified of a memo from health experts advising adopting masking and testing.  The officials allegedly declined to adopt the memo's recommendations.  Eventually, 2,100 inmates and 270 staff tested positive, and 26 inmates and one guard died.  The guard's family sued the officials for violating the decedent's constitutional rights.

The panel majority held that the complaint stated a claim for violation of the decedent's due process right to be free of a state-created danger.  Although state employers have no constitutional duty to provide employees with a safe working environment, they can be liable for affirmatively, and with deliberate indifference, creating or exposing their employees to a dangerous working environment.  The allegations, if proven, established affirmative conduct (transferring the inmates), a particularized danger (danger to the inmates and staff at the prison), and deliberate indifference to a sufficiently severe danger.  Further, they did not attempt to mitigate the risk.  The majority further ruled the constitutional right was clearly established for qualified immunity purposes.  Although COVID was a novel threat, two previous 9th Circuit cases held that a prison's disregard for employee safety (from inmate attack) and that deliberate indifference to health risks to employees (from exposure to toxic mold) together established the violation of the 14th Amendment through the state-created danger doctrine.  The majority further rejected the argument that the Public Readiness and Emergency Preparedness (“PREP”) Act, 42 U.S.C. § 247d-6d, would have lead reasonable prison officials to believe that they could handle the COVID-19 outbreak however they saw fit, without a risk of liability.  The PREP act does not limit constitutional rights; it limits liability for violating them.  It therefore does not affect qualified immunity.

A dissenting judge opined the officials should have qualified immunity for dealing with a novel health threat.

In Federal Court, a Summary Judgment Motion Preserves Purely Legal Issues for Appeal; They Need Not Be Raised in a Post-Trial Motion

In Dupree v. Younger, published May 25, 2023, the United States Supreme Court reversed a circuit court decision dismissing an appeal.  The plaintiff alleged that while he was being held as a pretrial detainee, three corrections officers assaulted him.  He sued them in federal court under 42 U.S.C. section 1983 for allegedly using excessive force in violation of the Fourteenth Amendment.  One of the officers moved for summary judgment based on his contention that the plaintiff had failed to exhaust administrative remedies, as required by the Prison Litigation Reform Act.  The district court denied the motion, based on its conclusion that the plaintiff had satisfied the exhaustion obligation under the law.  The case proceeded to trial.  The jury found for the plaintiff.  The officer did not file a FRCRP 50(b) post-trial motion.  He appealed a single issue to the Fourth Circuit Court of Appeals:  the district court's rejection of his exhaustion defense at summary judgment.  The Fourth Circuit dismissed the appeal based on its precedent holding that a claim or defense rejected at summary judgment is not preserved for appellate review unless it was renewed in a post-trial motion.

The Supreme Court ruled that a purely legal challenge made and rejected in a summary judgment motion is preserved for appeal, regardless of whether it is renewed in a post-trial motion.  An appeal from final judgment generally permits review of all rulings that led up to the judgment.  Some interlocutory district-court rulings are unreviewable from final judgment, because they are superseded by later developments in the litigation.  For instance, a sufficiency-of-the-evidence made at the summary judgment stage and rejected is superseded by the complete trial record.  A party must therefore raise a sufficiency-of-the-evidence claim in a post-trial mtion to preserve it for appeal.  The Supreme Court declined to apply this rule to pure questions of law.  Trials leave pretrial legal rulings undisturbed.  Trials resolve the facts, not the law.  A district court's purely legal conclusions at summary judgment are not superseded by later developments in the litigation.  Instead, they follow the general rule and merge into the final judgment.  They are therefore reviewable on appeal.  The court did not decide whether the exhaustion issue raised in this case was a purely legal issue.

Under State-Created Danger Doctrine, Officers and Social Worker Who Left Mentally Ill Mother Alone with Infants Can Be Sued for the Infants' Death

In Murguia v. Langdon, published March 14, 2023, a divided panel of the 9th Circuit Court of Appeals reversed in part an order dismissing a suit under 42 U.S.C. section 1983.  The plaintiff called 911 seeking emergency mental health assistance for his ex-wife, with whom he lived and had five children, including infant twins.  The mother was displaying bizarre behavior.  In response to the call, the first group of officers separated the mother and her twins from the plaintiff, and allowed the mother and a friend of hers to take the twins to church.  They prevented the plaintiff from following.  An officer from another agency then drove the mother and twins from the church to a woman's shelter.  A county social worker then allegedly provided incorrect information about the mother to officers from a third agency, who transported the mother and twins to a motel, and left them unsupervised.  The mother then drowned the twins in a bathtub.  The plaintiff sued all of the involved officers and social worker for allegedly violating his 14th amendment rights to substantive due process.  The district court dismissed the action for failure to state a claim.

The 9th Circuit majority reversed the dismissal in part.  The only two exceptions to the general rule against failure-to-act claims under section 1983 are those for special relationships and state-created danger.  There was no special relationship here, because the twins were never under the defendants' custody.  A state-created danger claim could be asserted against those defendant who created or enhanced any danger to the twins.  The panel upheld dismissal as to the first group of officers, since the facts alleged did not show they created or enhanced any danger to the twins by leaving the mother and twins with the mother’s friend.  The panel changed the dismissal to one without prejudice, since the plaintiff might be able to amend the allegations.  The majority held that the plaintiff adequately stated a claim against the officer who arranged for the mother to stay at the hotel room, transported the mother and twins from the shelter to the hotel room, and left the mother in the room with the twins.  The plaintiff adequately pleaded both danger enhancement/creation and deliberate indifference to the risk that the mother would harm the twins.  The majority also concluded the plaintiff adequately pleaded a state-created danger claim against the social worker, for allegedly providing false information about the mother to police.  By providing that information, she enhanced the danger to the twins by foreclosing the return of the twins to their father.  Following precedent, the panel found the claim for infringement on the plaintiff’s liberty interest from removal of the twins from him, and giving them to the other parent with custody of the twins, failed; it was a relatively minor infringement of the right that was insufficient to form a section 1983 claim.  The plaintiff also failed to plead a cause of action for seizure of his person based on the officers preventing him from following the twins.  They did not prevent the plaintiff from leaving his house for any other purpose.  Having found potential individual liability, the majority reversed denial of the Monell claim against the municipalities involved.

One judge dissented from the portions of the decision reversing dismissal.  The judge opined that the state-created-danger doctrine should apply only where officials abuse their power by intentionally putting a person in harm’s way.  The judge contended that the majority’s decision extended the doctrine to injuries caused by negligence and mistake.

Municipality Did Not Violate Parent's Liberty Interests by Allegedly Maintaining Lawless Area That Resulted in Death of Adult Son

In Sinclair v. City of Seattle, published March 1, 2023, the 9th Circuit Court of Appeals affirmed dismissal of a suit under 42 U.S.C. section 1983.  During the George Floyd protests of 2020, the mayor and police department of the defendant city surrendered a police precinct and a large area of the surrounding neighborhood to protesters for a month.  The protesters declared it the Capitol Hill Occupied Protest, or CHOP, zone.  The mayor labeled CHOP a "block party" and a "summer of love."  A councilmember publicly described CHOP as a "peaceful" occupation.  Allegedly, violence, vandalism, open drug use, and other crimes proliferated in the area.  The city allegedly provided the protesters with portable toilets, lighting, and other support, including modifying emergency response protocols of the police and fire department.  The plaintiff's 19-year-old son, who had special needs, visited CHOP and encountered a man with whom he had a history of antagonism.  The man allegedly believed CHOP to be a "no-cop" zone.  He was carrying a gun.  He shot the plaintiff's son.  CHOP participants carried the wounded son to a medical tent they had erected.  The fire department had an ambulance stationed a block and a half from that location.  A man implored the paramedics to help the son.  The paramedics were apparently waiting for a green light from police.  The police were allegedly confused about the paramedics' location.  The miscommunication caused a response delay of around 20 minutes before first responders arrived to treat the son.  By the time they responded, CHOP participants had transported the son to a hospital, where he passed away.  The plaintiff alleged the city violated her 14th Amendment due process rights to the companionship of her adult son.  She alleged that the city's acts and omissions regarding CHOP created a foreseeable danger for her son and that the city was deliberately indifferent to the danger.  The district court dismissed the action for failure to state a claim.

The appellate court agreed that the plaintiff had failed to state a claim.  The court initially expressed doubt on whether a parent had a liberty interest in the companionship of an adult child.  But because 9th Circuit cases had recognized the existence of such an interest, without analyzing the question, the panel believed itself bound by the precedent.  The court therefore addressed the merits of the allegations. The plaintiff alleged the city violated her rights by violating the son's right to be free of state-created danger.  The court ruled that the complaint's allegations supported the strong inference that the city acted with deliberate indifference toward the dangers of permitting and encouraging establishment of the CHOP zone.  But the city's alleged response after the son's shooting do not show deliberate indifference.  The paramedics attempted to provide care.  The city did not prevent them from doing so.  Instead, the delay in care resulted from a miscommunication.  Further, while the allegations support a conclusion that the city created an actual danger, they do not support the danger particularized to the plaintiff that the state-created-danger claim requires.  Any danger the city created affected all CHOP visitors equally.  The danger was not specifically directed at the plaintiff or her son.  The section 1983 claim therefore fails.

One judge wrote a separate concurrence urging that the issue of whether a parent has a liberty interest in the companionship of an adult child be reviewed en banc.

School District Did Not Violate Students' Free Speech Rights under First Amendment or California Law by Disciplining Them for Off-Campus Social Media Posts Targeting Fellow Students

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.