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Ninth Circuit Affirms School’s Ability to Discipline for Off-Campus Instagram Posts and Comments

discipline Instagram posts and comments

The U.S. Circuit Court of Appeals for the Ninth Circuit (“Ninth Circuit”) affirmed a California school district’s decision to discipline two students’ for their off-campus, afterschool, social media posts, despite the students’ claims that their First Amendment rights were violated. In so holding, the Ninth Circuit held that the students’ rights were not violated due to the “significant impacts” their speech had on the school environment.

In Chen v. Albany Unified School District, — F. 4th —, 2022 WL 17957458 (9th Cir. Dec. 27, 2022), a student created a secret fake Instagram account, also known as a “Finsta,” whose posts were shared privately “with [his] small group of friends.” The secret Finsta account had posts ranging from being “immature” (i.e., making fun of students due to braces, glasses and weight) to “vicious invective with racist and violent themes against specific Black classmates.” These vicious posts and comments included using racial slurs and “posts depicting lynching and nooses.” While made off-campus and afterschool, the posts had a significant effect on the high school campus. “School counselors and mental health staff were inundated” with upset students and one student even withdrew from the high school.

As a result, district administrators pursued expulsions for two students and suspended others for their respective involvement in the Instagram account and the postings. Having obtained an unfavorable lower court judgment from the U.S. District Court for the Northern District of California, two of the disciplined students appealed to the Ninth Circuit arguing that their free speech rights under the First Amendment were violated when the school district disciplined them for the social media posts.

Affirming the district court’s judgment, the Ninth Circuit held the school district did not violate the students’ free speech rights and properly disciplined the students for bullying. Specifically, the Ninth Circuit primarily considered the following issues: (1) whether the school district could have disciplined the students had the speech occurred on campus; (2) whether the students are protected from discipline by virtue of the speech occurring off campus (whether there was a sufficient nexus); and (3) whether the students’ conduct violated the California Constitution or Education Code.

First, the Ninth Circuit explained that the First Amendment must be “applied in light of the special characteristics of the school environment,” meaning that speech can be restricted (or punished) when it might “‘reasonably [lead]…to…substantial disruption of or material interference with school activities’… or…collides with the rights of other students to be secure and to be let alone.’” The Court found the abhorrent and racist posts to be different from odious, yet protected political speech, noting that one of the students admitted the posts were for “entertaining [his] friends,” rather than expressing a political viewpoint. The “vicious invective” used by the students was therefore the type of speech which could result in discipline had it occurred on campus.

Second, the Ninth Circuit considered whether the location of the speech—off-campus, which also occurred afterschool hours via social media posts—meant the school lacked authority to discipline the students, given that schools have “diminished authority” to police off-campus speech. However, off-campus speech may result in discipline when it bears a “sufficient nexus” to the school. Here, the school was allowed to impose discipline because “it was foreseeable” that the posts would cause “significant impacts” to other students at school, and the student body at large. In fact, in this case, significant impacts were noted. As result of the posts, impacted students missed multiple days of school, and one student withdrew from school entirely. Hence, the First Amendment did not bar the district’s decision to discipline the students in response to their posts.

Third, the Ninth Circuit considered whether there was anything in the California Constitution or California Education Code which would protect the students’ speech. The Ninth Circuit held that the California Constitution follows the “federal law for free expression claims arising in the school setting.” As such, any claim that the discipline violated the students’ constitutional rights failed for the reasons discussed regarding issue one and two, discussed immediately above. Further, the California Education Code sections referencing speech in the school setting would apply here because the students’ “speech” was not protected by the First Amendment as discussed in the first issue analyzed by the Ninth Circuit.

This Ninth Circuit decision reaffirms a school district’s ability to discipline students may extend beyond the confines of the school grounds in certain circumstances.

If you have any questions about this blog post, the decision, or student discipline in general, please feel free to contact any of the attorneys at GPV. You can also follow us on Facebook, LinkedIn, or Instagram. This does not constitute legal advice. Each case must be analyzed based on the specific facts of that case. GPV does not guarantee or predict the same or similar results in all cases. If you have questions about a particular fact pattern, please contact your legal counsel.

1. The Ninth Circuit also addressed one of the students’ arguments that he was denied due process as a result of a board member’s bias. The Ninth Circuit asserted that the student failed to exhaust judicial remedies, and even if the student had exhausted judicial remedies, the lower court did not find that the student’s “claims of bias had preclusive effect.”

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