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Federal Judge Rules in Favor of School District in Limiting Student Speech

On November 29, 2017, Judge James Donato of the U.S. District Court for the Northern District of California ruled on summary judgment motions filed in C.E., et al. v. Albany Unified School District. This case arose when a group of Albany High School (AHS) students sued Albany Unified School District (AUSD) after they were punished for posting on or engaging with a racist Instagram account. Plaintiffs alleged violations of First Amendment freedoms. Judge Donato found that AUSD was within its rights to discipline most of the plaintiffs, based on their level of participation with the offending account. Central to this case were timely issues of First Amendment freedoms in the age of social media.

In November 2016, an AHS student identified in court documents as C.E. created a private Instagram account under the handle @yungcavage. He invited several fellow students to follow the account. By March 2017, @yungcavage had about nine followers, all of whom were able to view, like, and comment on posts. During this time, C.E. made between 30 and 40 posts. These posts largely consisted of racist images and memes, many of which specifically targeted AHS staff and students. One post was a “Klu klux starter pack,” which included images of a noose, a burning torch, a black doll, and a white hood. Another featured an AHS student and basketball coach, both African-American, with nooses drawn around their necks. The post was captioned “twinning is winning.”

The @yungcavage account remained private until late March 2017, when one of its followers, a Doe plaintiff in this case, showed the account to a targeted student. News spread quickly around the school. On Monday, March 20, a student who had learned of the account asked one of the plaintiffs to borrow his phone. She proceeded to log into his Instagram app, and take photos of @yungcavage posts using her own phone. Throughout the day, these images circulated through the AHS student body. School administration became aware of the situation that afternoon, when a group of distraught students gathered in the hallway. Once C.E. became aware that @yungcavage was now public information at AHS, he deleted the account. AUSD expelled C.E., who parties agree made all @yungcavage posts, and suspended the account’s followers.

The key question presented by the parties’ summary judgment motions was whether the plaintiffs’ activities constituted protected speech under the First Amendment. In the landmark 1989 case Texas v. Johnson, the Supreme Court ruled that speech cannot be curtailed “simply because society finds the idea itself offensive or disagreeable” 491 U.S. 397, 414 (1989). The speech in question here, however, occurred at a school. Citing Ninth Circuit and Supreme Court decisions, Judge Donato explained that because schools have a responsibility to protect students from harm and preserve the learning environment, the courts do not handle speech made in schools in the same way as speech made in the outside world. School speech is far more restricted. Many @yungcavage posts were directly linked to events at AHS, and included photos of students. They were disturbing and had a significant negative effect on the general school environment. Some students missed several days of school due to fear and embarrassment, and school officials opted to call the police as well as mental health professionals to help manage the situation. Based on this, Judge Donato granted summary judgment in favor of AUSD with regard to C.E. and the plaintiffs who made offensive comments on @yungcavage posts.

Judge Donato ruled, however, that AUSD disciplined some of the plaintiffs improperly. Plaintiff Nick Noe was suspended simply for following @yungcavage. He never liked or commented on any of the posts. Judge Donato clarified that Noe should be understood as a “reader,” and cited past Supreme Court decisions confirming that the right to read or consume offensive speech is protected under the First Amendment. Other plaintiffs were suspended for their comments on @yungcavage posts that Judge Donato found did not interfere with other students’ well-being. One example was a comment which read, “This account is racism solely directed at black people,” followed by a laughing emoji. Summary judgment was granted in favor of these plaintiffs.

This case is more complex than many other well-known cases involving school speech, like Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), because it involves speech made on a social media platform after school hours. While the images and words found on the @yungcavage page were not made in person or physically displayed on school grounds, they nevertheless were deeply disturbing to students and had significant ramifications at AHS. Judge Donato’s order is reflective of the fact that online speech has comparable power to in-person speech. C.E. v. AUSD affirms that schools can discipline students who make hateful speech online. Schools should be careful, however, not to overstep by punishing speech that is protected under the First Amendment.

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