9th Circuit Court of Appeals Holds that a School May Discipline Students for Off-Campus Social Media Posts

January 12, 2023

Important Takeaways: The 9^th Circuit Court of Appeals affirmed a lower district court decision that a school district did not violate students’ Free Speech under the First Amendment when they disciplined students for off-campus social media activity.

Facts: During the 2016-2017 school year, students Kevin Chen and Cedric Epple attended Albany School District (school district). In November 2016, Epple created a private Instagram account to share memes, images and comments with his close friends. Epple attempted to keep the page private and only allow his close friends to follow. Epple used the account to make insulting posts of other school district students making fun of their braces, glasses, or weight. Some posts were more vicious with racist and violent threats targeted at specific black students. These posts included images of black students with nooses drawn around their necks and Ku Klux Klan violence. Other comments and posts also used derogatory language to refer to black students. Chen became involved in the activity by adding derogatory comments about black students to the Instagram posts. Chen also contributed to the Instagram account by taking pictures of black classmates that Epple later posted.

On March 18-19, 2017, a follower of the account showed the account to one of the students targeted in a post. The next school day the posts were shown to many other students at the school, including those targeted by the posts. A group of around 10 students gathered at the school upset, yelling, or crying and could not go to class. The school’s administrators gathered the students for a meeting to discuss why they were upset and provide mental health services to the targeted students. One assistant principal determined that the posts depicting lynching and nooses could be taken as threats of violence and called the police. After police and administration interviewed students, Epple took responsibility for the page and Chen admitted to liking and commenting on posts.  Epple and Chen were both suspended for 5 days. The school principal then told them he would be moving forward on expelling the students because their posts constituted harassment and bullying based on race and gender.

The effects of the Instagram page were great for students. Students wanted to discuss the issue in class and some were even unable to attend class because they were upset or fearful. There were additionally restorative justice classes offered by the school district where protestors gathered outside which ultimately ended in physical violence.

Epple and Chen’s expulsion hearings were scheduled for June 1, 2017, but on May 1, Chen filed a lawsuit in federal court alleging his First Amendment Rights to Free Speech were violated when he was punished for the off-campus social media activity. His expulsion hearing was suspended by the court. Epple’s expulsion hearing went forward and he was expelled on June 22, 2017, and this decision was upheld through appeal. Epple then filed a lawsuit against the district alleging the same claims as Chen and both alleged their due process had been denied with the expulsion hearings. The district court found in favor of the school district in all lawsuits on the Free Speech claims. In 2018 the due process claims were also dismissed by the district court.

The 9^th Circuit Court of Appeals upheld the decision that the school district had the authority to punish the students for the content on the Instagram page. The Court first analyzed when school districts can discipline students for on-campus speech then considered whether Epple and Chen can be disciplined because their speech occurred off campus. The Court explained that students’ speech in schools may be restricted if it might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities or if the speech collides with the rights of other students to be secure and to be let alone. A substantial disruption must be more than a desire to avoid the discomfort and unpleasantness that accompanies an unpopular viewpoint. The Court also explained that students’ speech outside of school can be regulated if it bears a significant nexus to the school. To determine if speech has a significant nexus to the school the court will consider the degree and likelihood of harm to the school caused by the speech, whether it was reasonably foreseeable that the speech would reach and impact the school, and the relation between the content and context of the speech and the school. The 9^th Circuit explained that nothing in the recent Mahanoy Supreme Court decision is inconsistent with the nexus test.

The Court held that it was plainly foreseeable that the posts would hit their target audience because of the ease electronic communications can be copied and have significant impacts on the individuals targeted and the whole school. The students who were targeted by the posts felt devastated, scared, and bullied, and some even missed school or class. If the school had failed to respond to the harassment of the posts, the school district may have exposed itself to potential liability for failing to respond adequately to a racially hostile environment that it knew about. While students can express viewpoints they cannot severely harass and target classmates in a way that is readily and foreseeably transmissible to those classmates. The Court also rejected any claims that California law was violated by the punishment. The Court held that the social media activity, in this case, had a significant nexus to the school.

What this Means: Although the Supreme Court held that a school district cannot punish a student for off-campus social media activity in Mahanoy, in the 9^th judicial circuit, a school district may punish students for social media conduct if there is a significant nexus between the social media usage and the school. This means the activity can be restricted if there it is reasonably foreseeable that the activity will reach and impact the school.

What is the name of the case and where you can read it: Chen v. Albany Unified School District, 9^th Circuit, December 27, 2022 Read it here.

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Megan, Beth, and Kevin at 406-542-1300 to discuss these issues.