High School Students Can Be Disciplined for Racist Private Instagram Account–Chen v. Albany School District

The Supreme Court’s Mahanoy decision left many issues for the lower courts to resolve about when schools can discipline students for social media posts. This opinion from the Ninth Circuit starts to fill in some of the gaps.

The case involves several Albany High students, including Epple and Chen. In 2016, Epple created a private Instagram account named “yungcavage” as “a private forum where [he] could share funny memes, images, and comments with [his] close friends that [they] thought were funny, but which other people might not find funny or appropriate.” (I was just talking about Judge Kozinski’s similar server!) Epple allowed about 13 classmates, including Chen, to follow the private account. Chen engaged with some of the content.

Epple posted cruel things about classmates, ranging from “immature posts making fun of a student’s braces, glasses, or weight to much more disturbing posts that targeted vicious invective with racist and violent themes against specific Black classmates.” I won’t repeat the latter, but the posts referenced things like slavery, lynchings, and gorillas, and used the n-word.

As usual with “private” accounts like this, eventually the yungcavage contents leaked out to other students. Many students, parents, and teachers were justifiably upset, and unsurprisingly the public reaction was severely negative (1, 2). The superintendent summarized the reactions:

the impact has been significant and ongoing. Parents stated they are afraid for their children’s safety on campus and off campus. They stated that their children are traumatized and cannot study, and that they are afraid to be in the same class or on the same campus as the students who posted. Several of the students’ grades dropped because they were unable to attend school or some classes, and they are now worried about failing their classes. Some students could not return to school for several days. Most of the students say they are hurt, angry and feel betrayed. One parent reported to me that his daughter has lost sleep, that sometimes she can talk about the incident and sometimes she is too upset to talk at all about the postings.

The principal suspended Epple and Chen for 5 days. Eventually they were expelled. They sued the school district for deprivations of their free speech rights.

The court says that the school could easily have punished the students for their speech if it had been made on campus:

The posts in the yungcavage account include 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.” Moreover, some of the posts used violent imagery that, even if subjectively intended only as immature attempts at malign comedy, would reasonably be viewed as alarming, both to the students targeted in such violently-themed posts and to the school community more generally

Though the Instagram activity took place off-campus, the court says there was a sufficient nexus between Epple’s conduct and the on-campus impacts to justify discipline:

Given the ease with which electronic communications may be copied or shown to other persons, it was plainly foreseeable that Epple’s posts would ultimately hit their targets, with resulting significant impacts to those individual students and to the school as a whole…

Epple again emphasizes that he did not ever intend for the targets of his posts to ever see them. But having constructed, so to speak, a ticking bomb of vicious targeted abuse that could be readily detonated by anyone following the account, Epple can hardly be surprised that his school did not look the other way when that shrapnel began to hit its targets at the school.

I mean…I guess? Teens aren’t exactly known for logically anticipating and thinking through the consequences of their decisions, which is why we require them to get an education and legally treat them differently than adults. So saying the damage was “plainly foreseeable” to Epple seemingly applies adult logic and standards to immature and underdeveloped teen brains. (I also wonder how much Epple and Chen were mirroring information from their home environments).

The court is on better ground when it discusses the concerns of other students. The court says the school had “the role of protecting other students from being maltreated by their classmates….a failure by the school to respond to Epple’s harassment might have exposed it to potential liability on the theory that it had ‘failed to respond adequately’ to a ‘racially hostile environment’ of which it had become aware.” This is the standard no-win conundrum faced by schools (and other institutions, like employers) when one community member engages in anti-social behavior targeting other community members–the school can either intervene and face liability from the alienator; or fail to intervene and face liability from the alienatees. The court summarizes (emphasis added):

Students such as Epple remain free to express offensive and other unpopular viewpoints, but that does not include a license to disseminate severely harassing invective targeted at particular classmates in a manner that is readily and foreseeably transmissible to those students.

Chen didn’t contribute as much content to the private account as Epple did, but the court still condemns his behavior:

he affirmatively liked two such posts and denounced, in vulgar terms, another follower who criticized one such post. At the very least, Chen is akin to a student who eggs on a bully who torments classmates. A school may properly take account of such affirmative participation in what ended up, after the account became known, as abusive harassment targeted at particular students. Moreover, several of the targeted students stated that the severity of the hostile environment they experienced was exacerbated by the knowledge that other students participated in the account and “liked” the abusive posts.

The court’s analysis of Chen’s contribution deserved a little more nuance, even if the court ultimately reached the right result. Per Section 230, Chen cannot be liable for Epple’s content, even if he “liked” it or commented on it. Chen is responsible for his own comments, some of which may have crossed the invisible line of propriety, but the court should have explained what comments crossed the line and why. Saying that Chen “egged on a bully” treats him as part of a cybermob, which mushes together Epple’s and Chen’s content/conduct. The court should have been more precise about exactly what Chen did wrong and how it was reasonably foreseeable that Chen’s behavior would impact the school community.

A concurring judge laments the prevalence of hate speech: “When school authorities take action to root out the persistent echoes of racism that arise from time to time in American society, courts should not stop them, instead allowing racist comments to be rooted out and not deemed protected by the First Amendment.”

The Mahanoy case was an important win for high schoolers’ free speech, but the court made clear that those freedoms have limits. The Ninth Circuit’s ruling gives us a little more information about when off-campus online behavior is likely to impact the school community.

Case citation: Chen v. Albany Unified School District, 2022 WL 17957458 (9th Cir. Dec. 27, 2022)

Selected related blog posts:

* School Can Discipline Student for Impersonating Teacher Online, Even if Other Students Added the Worst Content–Kutchinski v. Freeland School District
School Can’t Discipline Student For Off-Campus Snapchat Messages–Mahanoy School District v. BL
High School Can’t Expel Student for Sharing Memes in Private Snapchat Conversation–JS v. Manheim Township School District
More Teenagers Mistakenly Think “Private” Chat Conversations Will Remain Private–People v. JP
Must Universities Shut Down Constitutionally Protected Speech Forums That Also Enable Student Harassment?
Twitter Isn’t Liable for Impersonation Account–Dehen v. Doe
Court Affirms Stalking and Harassment Conviction for Tagged Tweets–In re AJB
University Defeats Cyberbullying Lawsuit Related to Yik Yak–Feminist Majority v. UMW
Facebook Isn’t Liable for Fake User Account–Caraccioli v. Facebook
University Rejection of Students’ Marijuana-Themed T-Shirt Violates First Amendment–Gerlich v. Leath
Student Disciplined for Posting Threatening Mashup Video to Instagram–AN v. Upper Perkiomen School District
Tweeting Death Threats Isn’t Juvenile Delinquency–In re R.D.
University Cannot Discipline Student for Off-Campus Tweets
Qualified Immunity Bars Claims Based on Search of Student’s Facebook Account and Discipline for Private Messages
School District Wrongly Disciplined Student for a Two Word Tweet
First Amendment Bars School Discipline For Student’s Rap Video About School Coaches
Two Student Threat Cases Illustrate Gross Disparity in Treatment of Student Speech
Ill-Advised Student YouTube Video Leads to Conviction For Misusing Computerized Communication System–In re Kaleb K.
University May Be Liable for Improper Access to Student’s Facebook Photos – Rodriguez v. Widener Univ.
Crass and Offensive Tweets by Student May not Justify Suspension — Rosario v. Clark County School Dist.
Misguided Catfishing Scheme Leads to Discipline of College Students — Zimmerman v. Ball State
Another School Violated a Student’s First Amendment Rights by Disciplining Her For Facebook Posts — R.S. v. Minnewaska Area School Dist. No. 2149
Mortuary Student Can Be Disciplined for Facebook Posts–Tatro v. University of Minnesota
Suspension for Facebook/YouTube Rap Video Critical of High School Coach Does not Violate First Amendment – Bell v. Itawamba County School Board
Racy Teen Photos Posted to Facebook Are Constitutionally Protected Speech–TV v. Smith-Green
Mortuary Sciences College Student Disciplined for Threatening Facebook Posts–Tatro v. University of Minnesota
Student Loses First Amendment Fight To Call School Officials “Douchebags” After Four Years Of Litigation–Doninger v. Niehoff
Nursing School Can’t Expel Students for Posting Photo to Facebook–Byrnes v. Johnson County CC
Sending Politically Charged Emails Does Not Support Disturbing the Peace Conviction — State v. Drahota
Private Facebook Group’s Conversations Aren’t Defamatory–Finkel v. Dauber
Third Circuit Schizophrenia Over Student Discipline for Fake MySpace Profiles
Private High School Not Liable for Cyberbullying–DC v. Harvard-Westlake
Nursing Student’s Blog Post Doesn’t Support Expulsion–Yoder v. University of Louisville
Principal Loses Lawsuit Against Students and Parents Over Fake MySpace Page–Draker v. Schreiber
Court Upholds Student Suspension For YouTube Video of Teacher
Teenager Busted for Creating Fake “News” Story