Ninth Circuit Affirmed Summary Judgment for School District in Challenge to Student Expulsion on First Amendment Grounds
In Chen v. Albany School District, the 9th Circuit affirmed the District Court’s decision, rejecting First Amendment free speech claims of students against the school and school officials after students were disciplined for what they alleged to be private, off-campus, social media posts. This case comes following the United States Supreme Court case, Mahanoy v. B.L., which ruled that school officials lacked authority to discipline a student for an off-campus, vulgar Snapchat post made off campus. The primary difference between Mahanoy and Chen is shown in the contents of the posts made by the disciplined students. In Mahanoy, the student made a post stating, “F*** school, f** softball, f*** cheer, f*** everything,” following her failure to make the varsity cheerleading team. In Chen, students created a private Instagram account, only allowing certain people to follow the account, with “disturbing posts that targeted vicious invective with racist and violent themes against specific Black classmates.” Posts included pictures of classmates depicted as slaves experiencing violence, pictures depicting or making light of Ku Klux Klan violence against Black people, and other offensive, racist insults with side-by-side images of Black classmates and a gorilla. Posts included racial epithets as well. As expected, word about this account eventually spread throughout the school and a number of students approached school administrators, extremely upset about the social media account. The District called in counselors and mental health staff for the students who were too upset to return to class. Targeted students left school early, didn’t feel safe returning to class, missed days of school, and one even withdrew. The grades of many students targeted by the posts suffered. Administrators suspended the students responsible for creating posts on the account.
In a challenge to the student discipline, on First Amendment grounds, the District Court applied the 9th Circuit McNeil factors, a test created in the Ninth Circuit before the Supreme Court’s Mahanoy decision, to determine whether off-campus speech “bears a sufficient nexus to the school” to allow regulation of that speech by the school. It looked at “(1) the degree and likelihood of harm to the school caused or augured by the speech, (2) whether it was reasonably foreseeable that the speech would reach and impact the school, and (3) the relation between the content and context of the speech and the school.” The 9th Circuit found that the McNeil test was consistent with the Mahanoy case and that focused particular interest on the third factor. As the court discussed that third factor, it cited Mahanoy, where the opinion identified that the “school’s regulatory interests remain significant” when students are subjected to “serious or severe bullying or harassment targeting particular individuals.” The Ninth Circuit identified that failure to respond to the harassment and bullying may have subjected students to a racially hostile environment that the school was aware of and led the school to potential liability for not reacting in some manner.
While some may read this case as extending the authority to discipline students for off-campus conduct, we want to caution school administrators to be careful in that interpretation. This case had very clear facts that the off-campus speech bled into the school’s education program and the speech was so clearly threatening, targeting, and racially-hostile that it lacked First Amendment protection. However, not every case is this clear and school administrators should be careful to discuss issues that arise in their Districts with their school attorney. It is also important to remember that this case is a Ninth Circuit case, not a Seventh Circuit case. Most importantly, what school administrators should take from this case is that they have a duty to react to bullying and harassment in the educational environment. The Albany School District made a great decision when it immediately brought in mental health staff and counselors to support those students who had been targeted. That decision was not discipline-based, therefore had nearly no risk, and showed that it took the reported conduct seriously and cared about protecting its educational environment and students.