Chen v. Albany, No. 20-16540, 3:17-cv-02478 (9th Cir. 2022)
By Dan Fotoples, J.D., M.A., Director of Content Development, TNG Consulting
The School Board expelled two students, Epple and Chen, after their violent and racist Instagram posts about classmates circulated around their high school. The students challenged the school board’s ability to discipline them, arguing their speech was protected because it occurred off-campus.
After being expelled, Epple and Chen sued in federal court. The students alleged the School Board, its members, and the high school administrative staff had violated their free speech rights. The federal district court combined the students’ lawsuits. All parties filed for summary judgment and the district court sided with the School Board. Epple and Chen appealed.
SUMMARY OF FACTS
Epple and Chen were students at Albany High School (AHS), a public high school in California. In November 2016, Epple created a private Instagram account to share memes, images, and comments with close friends. Epple intended for the account to be private because it contained content that other people might not find funny or appropriate. Over the next few months, Epple only approved 13 people to follow the account. Epple used the account to make several cruel, racist, and violent posts about other AHS students, invoking images of lynching, slavery, and the Ku Klux Klan while using racial epithets and other racist language. Chen supported such posts by “liking” them and posting encouraging and supportive comments. Chen also used a racist slur in his comments.
By March 2017, knowledge of the contents of Epple’s private Instagram account had spread around AHS. As knowledge of the account spread, several students became upset to the point that an assistant principal stated that she had “never seen a group of students as upset as these girls were.” Indeed, the school immediately summoned the school’s counselors and mental health staff to provide support. The school also called the police, as several of the posts depicted violence. Other students reported being afraid to attend class; missing class; withdrawing from the high school; feeling devastated, scared, or bullied; and suffering academically. The AHS counselors were inundated with students needing help to process feelings of anger, sadness, betrayal, and frustration. In the words of the superintendent, “The impact has been significant and ongoing.”
Epple took responsibility for the images and posts, with Chen admitting that he followed the account and liked or commented on some of the posts. The school suspended them for five days. A few days later, the principal informed Epple and Chen that he was going to recommend they be expelled based on their harassment and bullying of other students. The school board voted to expel both students.
FINDINGS AND SIGNIFICANT ISSUES
The appeals court began its analysis by concluding that the First Amendment would not prevent a school from disciplining the sort of speech present in this case. The Instagram posts were vicious, violent, and targeted at specific individuals. Therefore, the central question became whether the off-campus nature of the speech placed it outside of the school’s authority to discipline.
The appeals court noted that the Supreme Court, in Mahanoy, had recently decided an off-campus free speech case involving a high school student and their use of social media. The Supreme Court clarified that the standard for an in-school “substantial disruption” is a demanding one, requiring more than a mere desire to avoid the discomfort and unpleasantness of an unpopular viewpoint. In Mahanoy, the Supreme Court held that public schools may regulate some off-campus student speech, but they have diminished authority to do so, at least in comparison to in-school speech.
The appeals court cited to another federal appeals court decision, McNeil, for an oft-used three-factor test for determining whether off-campus speech bears a “sufficient nexus” to the school to permit school discipline. The relevant considerations include:
- The degree and likelihood of harm to the school caused by the speech
- Whether it was reasonably foreseeable that the speech would reach and impact the school
- The relation between the content and context of the speech and the school
After analyzing the three factors, the appeals court concluded that Epple’s speech had a sufficient nexus to the high school to warrant disciplinary action by the school.
Turning to the first factor, the degree of harm was significant. Targeted students reported they felt devastated, scared, and bullied. Their grades suffered, too. One student missed multiple tests and days of school before her parents withdrew her. Even students not targeted by the posts were distraught and experienced disruption to their school environment.
In analyzing the second factor, the appeals court held it was reasonably foreseeable that the speech would reach and impact the school environment. Given the ease with which users may screenshot or show Instagram posts to others, it was “plainly foreseeable” that Epple’s posts would make their way around school. Epple’s subjective intention to keep the posts private did not factor into the analysis.
Finally, the third factor also weighed in favor of the school board’s disciplinary authority in this matter. The appeals court’s rationale here is a bit tougher to identify, probably because the third factor is a bit vague to start. That said, the appeals court focused on the idea that Epple’s posts resulted in serious or severe bullying or harassment of individuals, which the Supreme Court identified as a circumstance in which the school’s disciplinary authority persists, even off-campus. In such situations, the school’s authority and responsibilities include protecting other students from mistreatment by their classmates. Indeed, if the school had failed to respond to bullying or harassment, inaction may have resulted in liability. Given the extraordinary nature of abuse Epple targeted at classmates, the appeals court asserted that Epple’s speech rose above being merely an uncomfortable, unpopular viewpoint. Discipline in this case presented no future risk, according to the appeals court, that schools will punish protected speech off-campus.
Additionally, the appeals court likened Chen’s actions to a student who eggs on a bully tormenting their classmates. Therefore, Chen’s behavior is subject to discipline, as well.
- The ability of K-12 schools and districts to discipline students for off-campus behavior continues to evolve post-Mahanoy. Here, the appeals court asserted that the Supreme Court’s decision in Mahanoy, and how the Supreme Court analyzed the issue of off-campus discipline, did not conflict with the three-factor test the Ninth Circuit had previously designed. Time will tell if other federal circuits follow suit.
- There are key factual differences that led the appeals court to a different outcome in this case than the Supreme Court reached in Mahanoy. In Mahanoy, a student used Snapchat to express her displeasure at failing to make the varsity cheerleading squad, taking a selfie with her middle fingers raised and the text “fuck school fuck softball fuck cheer fuck everything.” The message was not targeted toward anyone, and while containing vulgar language, did not include violence or threats. In this case, Epple’s Instagram posts were directed at specific classmates and included racist and violent imagery and language. Additionally, the impact on the school in Mahanoy was minimal, especially compared to the present case. Some observers believe this continues a tendency in some courts to elaborate a “harm-based” exception to the First Amendment, at least in extreme cases.
- The court’s assertion here that it was foreseeable that these private posts would make their way around the school could easily lend itself to the conclusion that such an analysis could apply to all social media posts, meaning that they are all effectively as public as open posts.
- In this case, the appeals court focused on the fact that the speech at issue likely qualified as bullying – indeed, that was the stated reason for expulsion – which implicated the school’s responsibility to protect other students. The court’s rationale points to the importance of having published policies outlining prohibitions on bullying and harassment, including race-based harassment (Title VI) and sex- or gender-based harassment (Title IX). Ensure such policies provide a safe harbor for protected speech while also clearly establishing the line where speech becomes bullying and harassment. Here, there was a California state law defining those terms, giving the school board an established policy to use as the basis of its decision to expel the students.
- The impending Title IX regulations appear to effectively elaborate a harassment exception to the First Amendment. Whether courts will show deference to this agency sensibility remains to be seen, but based on Albany, it seems the Ninth Circuit, at least, will be inclined to agree.
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 The court opinion describes the graphic imagery, racist slurs, and other content in the Instagram posts, the details of which are not necessary to include in this summary for readers to understand the outcome and its implications.
 No. 20-16540, 3:17-cv-02478 at 11.
 Id. at 13.
 141 S.Ct. 2038 (2021).
 918 F.3d 700 (9th Cir. 2019).
 The appeals court determined that the Supreme Court’s decision in Mahanoy is not inconsistent with the three-part test identified here, but there are some additional considerations the Supreme Court identified in Mahanoy.
 California Educ. Code Section 48900.4.