ARE YOU ATTENDING THE MIDWINTER CONFERENCE? IF SO, YOU ARE INVITED TO THE WALSH GALLEGOS RECEPTION THIS AFTERNOON AT FLEMINGS RESTAURANT, JUST A BLOCK FROM THE CONVENTION CENTER. HOPE TO SEE YOU AT 5:30!
Is it even possible to create a social media account that is limited to just a few people? That’s what Cedric Epple (soon to be known as “the Plaintiff”) attempted to do during the 2016-17 school year. His intent was to keep this account to a few carefully selected friends so that they could share memes, images and comments “which other people might not find funny or appropriate.”
What Cedric posted, and other students added to or “liked” went way beyond “not funny.” It went way beyond “vulgar and inappropriate.” I’m not going to describe the posts in detail here, but let’s just summarize the content as the 9th Circuit did:
These ranged from immature posts making fun of a student’s braces, glasses, or weight to much more disturbing posts that targeted vicious invective with racist and violent themes against specific Black classmates.
After he was expelled from school, the Plaintiff alleged that the school had infringed on his free speech rights by punishing him for these posts, which he did when he was not at school. He argued that the school had no authority to discipline him. After all, he had not intended for his posts to be seen by anyone but about 13 people that he approved to follow this private account.
Just ask any assistant principal how long that privacy is going to last. The Plaintiff’s plan to maintain a tight circle started to fall apart when one of his followers showed some of the content to one of the Black students who was shown on the Plaintiff’s Instagram account with a noose around her neck. That student then told others. And then a student who was not following the account asked to borrow the phone of a student who was allowed to follow it. The kid lied, saying that she needed to call her mom. Instead, she took the phone to the bathroom where she and another friend took pictures of some of the incendiary content.
So all of a sudden, knowledge of these despicable posts was widespread. The principal called a faculty meeting the next day and the faculty informed him that the horse was already out of the barn:
The teachers complained that the meeting should have been held the day before, because a “majority” of the students knew about the matter and wanted to talk about it in class, leaving the teachers to deal “with the situation all day without any official information from the school.”
An A.P. said that the school counselors and mental health staff “were inundated with students needing help to handle their feelings of anger, sadness, betrayal and frustration about the racist posts and comments in the Instagram account.” The superintendent described the impact of all this as “significant and ongoing.”
So there was a major disruption of school, but let’s get back to the Plaintiff’s insistence that it wasn’t his fault. He took steps to keep things private. It was those other kids who spread things around. The 9th Circuit displayed a common sense approach to that argument. The Plaintiff’s “intent” was irrelevant. What mattered was this:
Given the ease with which electronic communications may be copied or shown to other persons, it was plainly foreseeable that Epple’s posts would ultimately hit their targets, with resulting significant impacts to those individual students and to the school as a whole.
The court offered a colorful metaphor:
Epple again emphasizes that he did not ever intend for the targets of his posts to ever see them. But having constructed, so to speak, a ticking time bomb of vicious targeted abuse that could be readily detonated by anyone following the account, Epple can hardly be surprised that his school did not look the other way when that shrapnel began to hit its targets at the school.
This is a solid and important decision from a high level court that should assure school administrators that they are on firm ground when dealing with this kind of bullying, even when it is “only” on social media and “only” done off campus. In fact, ignoring behavior like this could lead to charges that the school was complicit in the creation of a racially hostile environment.
It’s Chen v. Albany USD, decided by the 9th Circuit on December 27, 2022. It can be found at 56 F.4th 708.
DAWG BONE: BULLYING IS NOT FREE SPEECH.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: Toolbox Tuesday!!