The U.S. Court of Appeals for the 9th Circuit unanimously ruled school districts reserve the right to discipline and expel students for content posted on social media, so long as the post creates a substantial disruption in schooling and collides with the rights of other students.
Two California students were expelled for creating a private Instagram account and posted racist memes and photos targeting Black students. The court rejected the students’ claims that posts were protected under the First Amendment.
Justices held social media posts, even if posted privately and off-campus, do remain under the purview of school officials when the conduct seeps into the school environment.
The ruling provides a stronger framework for teachers and school administrators on how to discipline bullying and harassment as it intersects with social media.
“The posts in the social media 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,’” Judge Daniel Collins wrote. “Nothing in the First Amendment would even remotely require schools to tolerate such behavior or speech.”
In 2016, Cedric Epple created a private Instagram account to share photos, memes and comments with his group of friends.
The account had 13 followers, with Epple rejecting multiple follow requests. Kevin Chen, co-plaintiff in the suit, was one of the followers. He contributed images and frequently commented.
Epple used the account to share posts insulting his classmates and, according to the court filing, a handful of the posts targeting Black students and faculty, with images of nooses, lynchings, slavery and Ku Klux Klan members.
Knowledge and images of the posts spread around the school, eventually leading to a call to the police and written statements from students targeted by the account.
One of the students withdrew from school, while others missed days of school and sought counseling. Epple and Chen were both expelled for their role in creating and contributing to the account.
Epple, Chen and other students disciplined in connection to the account then challenged the school in court, citing that, because the Instagram account was private, it did not fall under the school’s jurisdiction and therefore violated their First Amendment rights.
The initial district court decision did not find the argument compelling and decided the school was well within its rights as the speech had a sufficient connection to the school, would foreseeably reach beyond the 13 followers and create disruption interfering with the rights of other students.
The 9th Circuit Court affirmed the findings.
Bruna Pedrini, an education lawyer working with public schools and a former attorney with the civil rights division under former Arizona Attorney Generals Grant Woods and Janet Napolitano, said the ruling does not come as a surprise but notes new specificity provides needed clarity to school administrators.
Precedent set by the Supreme Court finds K-12 students’ First Amendment rights are limited within the context of schools. School administrators can censor or discipline students if their speech substantially disrupts the school environment or threatens another student’s right to access the curriculum.
This has grown to include off-campus speech, so long as it seeps into and substantially disrupts schools or targets harassment at specific students. But social media injects much more legal gray area.
“This really is the new frontier, even though it’s not that new,” Pedrini said. “The court was discussing how, in this day and age, that really, the law was catching up with the reality of social media.”
The 9th district ruling provides some of the specifics and clarity lacking in previous cases.
She said one of the bigger jumps was that the intent of the students to keep the account private was not enough to keep the posts from infiltrating the school.
“It is very foreseeable and predictable, that you can screenshot, you can forward. So even if you create something that originally is intended to be private, the likelihood that it is going to reach its target is high,” Pedrini said.
She also notes the case provides examples of the material harm to students and the school community, as a student withdrew, and others sought out mental health care or stopped attending classes.
Pedrini said any kind of clarity the courts can provide eases the jobs of teachers when approaching discipline of actions taken beyond the boundaries of a school.
Paul Tighe, executive director of the Arizona School Administrators Association, agreed.
Though he noted how social media and phone use have become an assumed tenant of discipline in schools today.
Tighe said administrators remain conscious of the boundaries schools face in approaching discipline, though social media can often provide a more concrete account when looking into certain cases.
“Sometimes it’s just hearsay as opposed to now it’s posted,” Tighe said. “It’s a little more tangible at times.”
Pedrini hopes to see a continual finetuning of First Amendment law as it intersects with social media and school discipline.
“When they step into this terrain, they will be fearful,” Pedrini said. “But I think that the courts help them when they give them clarity.”