This Week At The Ninth: Speech And Schools

• Jurisdiction: United States,Federal,California
• Law Firm: Morrison & Foerster LLP
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Author: Alexandra Avvocato
• Published date: 03 January 2023

This week, the Court considers when the First Amendment limits the ability to discipline students for private off-campus speech.

KEVIN CHEN ET AL. V. ALBANY UNIFIED SCHOOL DISTRICT ET AL.

The Court holds that a public school may, consistent with the First Amendment, discipline students for private off-campus speech that bullies or harasses particular classmates.

The panel: Judges Gould, Collins, and Silver (D. Ariz.), with Judge Collins writing the opinion and Judge Gould concurring.

Key Highlight: "[Plaintiff] 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 [social media] account, [Plaintiff] can hardly be surprised that his school did not look the other way when that shrapnel began to hit its targets at the school. And, as we have explained, recognizing an authority in school administrators to respond to the sort of harassment at issue here presents no risk that they will thereby be able to punish students engaged in protected political speech in the comfort of their own homes. [Plaintiff's] actions had a sufficient nexus to [his school], and his discipline fits comfortably within Tinker's framework and does not threaten the marketplace of ideas at [his school]." (Internal quotation marks and alterations omitted.)

Background: Plaintiffs Cedric Epple and Kevin Chen were students at Albany High School. In 2016, Epple created a private Instagram account to share images and comments with a small group of friends. He then "used the account to make a number of cruelly insulting posts about" his fellow students. Some of these posts featured racist or violent themes: for example, Epple posted photos depicting Black classmates with nooses around their necks. Chen followed the account and contributed to it with similarly racist comments.

Knowledge of the account spread through the school, causing significant disruptions to class proceedings. Students who had been targeted by the posts felt frightened and bullied, and their grades suffered when they were unable to return to school or to classes they shared with students who had participated in the account. School counselors and mental health staff also reported being inundated with students who needed help handling their anger, sadness, and betrayal.

School administrators reviewed the account and determined that some of its images could be...