School disciplines students over ugly Instagram account

A California school district expelled one student and suspended several others over an Instagram account that included racist and threatening comments about other students.  The students who were expelled or suspended sued, claiming that the district had infringed on their First Amendment rights.

The content of the Instagram posts is laid out in the court’s opinion, but is far too ugly to be repeated here. Suffice it to say it shows off humanity (or at least adolescence) at its worst.

The case has a long way to go. In this opinion, the court only addresses the First Amendment issue.  The court concluded that posting on Instagram is “expressive conduct” entitled to First Amendment protection. So is “liking” the posts of others.  Thus to determine whether or not school discipline was proper, the court relied on the Tinker test: was there a major disruption of school? Did the Instagram posts interfere with the rights of others?

The court divided the kids into three groups: 1) the creator of the account, who was also the sole author of all of the posts; 2) the kids who “liked” some of the posts or otherwise expressed approval of the message; and 3) those who followed the Instagram account, but made only neutral or ambiguous comments, without “liking” anything that was said.

The boy who created the account and wrote all of the posts was expelled. The ones who liked some posts, or expressed approval were suspended. The court held that the district did not violate the constitutional rights of any of these students.  Even though all of this “posting” and “liking” occurred off campus, there was a sufficient connection to the school that the school had a proper interest in taking disciplinary action.  Moreover, it was predictable that the account would come to the attention of the school, since it was entirely based on things happening at school, and targeted specific students and teachers.   Was there disruption? Oh boy, was there. Once this Instagram account became common knowledge there was a major upheaval.

This analysis by the court is very consistent with our new state law (David’s Law) that gives schools the authority to discipline kids for off campus cyberbullying.  This California case is definitely an example of cyberbullying and the court’s view of the matter will be comforting to school officials. Some examples:

Geographic location is still a relevant factor, but strict tests of locality are not compatible with the online methods of communication in our digital age.

…schools are responsible for preventing not only acts of violence or assault, but also harassment and bullying.

…students have the right to be free of online posts that denigrate their race, ethnicity or physical appearance, or threaten violence.  They have an equivalent right to enjoy an education in a civil, secure, and safe school environment.  [The plaintiffs] impermissibly interfered with those rights.

However, the court held that the third group of students should not have been disciplined. They had not created disruptive comment, nor “liked” it. In fact one student was a follower of the account, but testified that he never accessed any of the content, and did not know what it contained.  The court viewed him as, at most, a “reader” of the account. “The First Amendment protects readers as well as speakers.”

I found one of the arguments offered by the lawyers for the suspended students to be…oh….let’s just say “interesting.” They said that the kids made their Instagram comments “casually and thoughtlessly.”  The court made short shrift of that, noting that “a plaintiff’s subjective state of mind is irrelevant.  Under Tinker, the inquiry is whether the speech at issue interfered with the rights of other students to be secure and let alone. The District has established that it did.”

Tomorrow we will address one more aspect of this case—the so-called “Heckler’s Veto.”  Stay tuned!

This case is Shen v. Albany USD, decided by the federal court for the Northern District of California on November 29, 2017.  We found it at 2017 WL 5890089.


Tomorrow: What the heck is a “Heckler’s Veto”?