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School District’s Discipline of Students for Off-Campus Speech Affirmed by Ninth Circuit Court of Appeals

Education K-12 Education

A recent Ninth Circuit Court of Appeals decision held that school officials did not violate students’ First Amendment rights when disciplining them for off-campus social media posts that amounted to severe harassment targeting particular classmates. Though the Supreme Court recently rejected the reach of one school district’s discipline of a student for her off-campus speech as infringing upon the student’s Free Speech rights, the Ninth Circuit Court of Appeals affirmed in Chen v. Albany Unified School District, decided December 29, 2022, that not all off-campus speech is beyond school regulation.    

Mahanoy Sets the Framework for Discipline of Off-Campus Student Speech

School administrators and board members know well that what happens between students away from school rarely stays out of the school building. And with social media creating a veritable transcript, expressions that may have been unverifiable in past generations are now “Exhibit A” in student discipline files. As we previously reported here, a U.S. Supreme Court decision issued in 2021 provided a new framework for the authority of K-12 public schools to discipline students for off-campus expression. In Mahanoy Area School District v. B.L., at issue was whether a high school’s discipline of a disgruntled student-cheerleader was warranted under the First Amendment or an impermissible infringement of the student’s Free Speech rights. After learning that she had not made the varsity cheerleading team and was instead chosen for the junior-varsity team, the student recorded herself in an emotional and profanity-laced tirade away from school on a Saturday saying: “F—school, f—softball, f—cheer, f—everything.” She then posted the video to her Snapchat account where it was viewed by hundreds of her “private” followers and ultimately disseminated throughout the community. The student was then suspended from the junior varsity cheerleading team, with the school finding that her protests challenged the integrity of the team.

In an 8-1 decision, the U.S. Supreme Court rejected the school’s discipline as an unwarranted violation of her Free Speech rights. The Court examined whether the speech at issue was of a public concern such that it was protected by the First Amendment, or whether the speech was instead obscene or intended to incite lawlessness. Though her posting was critical of the school and distasteful to many, the Court found the statements to be the kind the First Amendment provides strong protection for ordinary citizens. The Court then examined whether the traditional on-campus speech standard first set forth in Tinker v. Des Moines Indep. Comm’y School District (1969) and subsequent Supreme Court precedent was appropriate to apply in the off-campus setting.  In Tinker, the Court held that on-campus student speech which did or was appropriately forecasted to “substantially disrupt” the ability of school officials to educate students or “interfered with the rights of others,” was subject to discipline by school authorities. But in Mahanoy, the Court reminded that such a standard is “demanding” and requires “more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint” and that the speech must be more than “merely offensive” to some listeners.

Though the Supreme Court stopped short of announcing a new bright-line rule for analyzing the extent to which school officials can apply the Tinker standard to off-campus student speech, it did set forth the following “features” that should be considered:

  • Is the speech ordinarily subject to the school’s “inherent parental authority” (i.e., in loco parentis) to ensure the orderly operations of the school, or is it speech traditionally reserved for parental oversight;
  • Whether the school is justified in its intervention to further its educational objective or is the discipline a restraint that threatens the student from ever engaging in the speech;
  • Whether the speech furthers the First Amendment’s objective of protecting an open “marketplace of ideas” including unpopular ideas, or whether the speech is of such low value that discipline is warranted.

Applying this “Tinker-plus” approach, the Supreme Court held that the Snapchat video was beyond the reach of school discipline. The Court emphasized that in addition to occurring outside of school hours and taking place through her private social media group on Snapchat, the student’s speech did not identify any individuals or target any member of the school community with vulgar or abusive language. The student’s general irritation and criticism of the school was protected speech, and there was an insufficient record of disruption or threatened harm to the rights of others to warrant school discipline.

Off-campus Hate Speech is Not Outside the Reach of School Discipline if a Sufficient Nexus Exists

The Ninth Circuit Court of Appeals recently applied the Supreme Court’s Tinker-plus framework announced in Mahanoy to a strikingly different disciplinary situation, and unsurprisingly, reached a very different conclusion. Like the private social media posts in Mahanoy, at issue in Chen v. Albany Unified School District were the private Instagram posts of a group of 14 students, particularly led by two students – Cedric Epple and Kevin Chen. Epple had created the private Instagram account “yungcavage” and allowed only 13 other students to “follow” the account, while declining many other requests. In addition to immature and offensive comments making fun of student appearances, Epple posted a variety of racist, highly disturbing, violent and hateful comments and memes, many of which targeted specific Black classmates at Albany High School (located outside Oakland, CA), including racist insults and references to slavery and violence of the Ku Klux Klan, including lynching.

Though Epple kept the followers to the yungcavage account very limited, word of its existence and contents spread to students within the school. When one of the students following the account loaned his phone to another student during school one day, she copied the contents of the account and shared it with other students at school. A group of ten students became visibly upset and emotional and had to be excused from class.

The school’s administration investigated the matter and Epple and Chen were suspended and recommended for expulsion on the basis that the posts constituted race and gender-based harassment and bullying that could create a hostile environment.  Given the threatening nature of some of the posts, police were informed of the matter as well. Teachers reported class disruption and that most students wanted to talk about the matter in class the next day. In subsequent days, some students were too upset to attend class and one of the targeted students withdrew from the school completely. The District’s Superintendent testified that counselors were inundated with students processing the situation and that some students’ grades suffered from the ordeal. Parents held a unity march the following week. A week after that, two of the members of the yungcavage group were punched in the face after leaving a restorative justice meeting. Following the school district’s recommendation for expulsion of Chen, and Epple’s expulsion, Chen and Epple filed lawsuits against the school district challenging their discipline, in part, as being in violation of their free speech rights under the First Amendment. Issuing its ruling prior to the Supreme Court’s decision in Mahanoy, the District Court held that the discipline did not violate their First Amendment rights. Chen and Epple appealed, and the Ninth Circuit upheld the District Court’s decision, affirming that the speech bore a sufficient nexus to the school district and its students to be subject to school regulation, even considering the Supreme Court’s recent decision in Mahanoy.

In reviewing the propriety of the expulsion of both Epple and Chen, the Court of Appeals first found that the students’ Instagram activity would have been clearly subject to discipline under the Tinker standard for “on campus” speech given the substantial disruption it caused and the deeply offensive and invective nature of the statements which were made towards targeted students within the school. Though the Court recognized the subjective intent of the group may have been to keep the statements private and not actually cause disruption, it reasoned that such intent was not controlling given the reasonable likelihood that disruption would occur.

The Court then turned to the “off campus” factors set forth in Mahanoy. It reasoned that the deeply offensive posts targeting specific students and creating extensive disruption fell within the ambit of the school’s in loco parentis supervision. The Court also noted that had the school district ignored the issue, it likely would have been accused of fostering a hostile environment, thus justifying disciplinary intervention. The Court additionally found that the speech at issue – though political in nature to some – was not offered as a means of political discourse, but rather as a means of offending and trampling on the liberty of others, thus eliminating any interest in protecting otherwise “unpopular” speech under the “marketplace of ideas” factor.

Takeaways for School Administrators Responding to Off-Campus Speech

As illustrated by the outcome in Chen, the Supreme Court’s decision in Mahanoy did not portend the elimination of all lawful discipline of student off-campus speech, especially speech that constitutes race-based harassment.  But the two cases illustrate that the bar justifying discipline for off-campus speech is certainly higher than speech made on-campus under a school’s “in loco parentis” supervision. When considering whether discipline for off-campus speech infringes on a student’s Free Speech rights, school officials must apply the new Tinker-plus analysis:

  1. Would the off-campus speech be subject to discipline if committed on-campus? In other words:
  • Did the speech create a “substantial disruption” within the school (or is likely to) (a high standard that must be supported with specific examples)? Or,
  • Does the speech clearly infringe upon the rights of others through deeply offensive expression that impacts the ability of others to learn or receive instruction?
  1. If one of the above standards is met, discipline of the off-campus speech is warranted only if:
  • The nexus of the speech to the school is sufficient to trigger its in loco parentis authority;
  • The regulation of the off-campus speech would not threaten the student’s ability to ever engage in protected speech; and
  • The speech is of such low value that the school’s interest prevails over the First Amendment’s objective of protecting an open “marketplace of ideas,” including unpopular ideas

If you have any questions about disciplining students for their off-campus activities and expressions, your attorneys at Franczek are ready to assist.