Keeping Tabs on the Ninth Circuit
December 30, 2022 - This Week at the Ninth

This Week At The Ninth: Speech and Schools

school blog

This week, the Court considers when the First Amendment limits the ability to discipline students for private off-campus speech.

The Court holds that a public school may, consistent with the First Amendment, discipline students for private off-campus speech that bullies or harasses particular classmates.

The panel: Judges Gould, Collins, and Silver (D. Ariz.), with Judge Collins writing the opinion and Judge Gould concurring.

Key Highlight: “[Plaintiff] 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 bomb of vicious targeted abuse that could be readily detonated by anyone following the [social media] account, [Plaintiff] can hardly be surprised that his school did not look the other way when that shrapnel began to hit its targets at the school. And, as we have explained, recognizing an authority in school administrators to respond to the sort of harassment at issue here presents no risk that they will thereby be able to punish students engaged in protected political speech in the comfort of their own homes. [Plaintiff’s] actions had a sufficient nexus to [his school], and his discipline fits comfortably within Tinker’s framework and does not threaten the marketplace of ideas at [his school].” (Internal quotation marks and alterations omitted.)

Background: Plaintiffs Cedric Epple and Kevin Chen were students at Albany High School. In 2016, Epple created a private Instagram account to share images and comments with a small group of friends. He then “used the account to make a number of cruelly insulting posts about” his fellow students. Some of these posts featured racist or violent themes: for example, Epple posted photos depicting Black classmates with nooses around their necks. Chen followed the account and contributed to it with similarly racist comments. 

Knowledge of the account spread through the school, causing significant disruptions to class proceedings. Students who had been targeted by the posts felt frightened and bullied, and their grades suffered when they were unable to return to school or to classes they shared with students who had participated in the account. School counselors and mental health staff also reported being inundated with students who needed help handling their anger, sadness, and betrayal.

School administrators reviewed the account and determined that some of its images could be construed as threats of violence. The school suspended Epple and Chen and initiated expulsion proceedings. Epple was expelled for bullying. He appealed, arguing that a board member who voted for his expulsion was biased against him. His expulsion was ultimately upheld by the California superior court. 

Epple then filed suit, alleging that defendants violated his free speech rights under the First Amendment and California law. He further alleged that certain defendants violated his federal due process rights in connection with his expulsion hearing. Chen also filed suit, alleging similar free speech and due process violations based on his suspension. (Because Chen’s case was filed before his expulsion hearing, that hearing was stayed.)

The district court dismissed Plaintiffs’ free speech claims, concluding their speech was subject to regulation and properly disciplined based on its nexus to the school and its foreseeable risk of substantial disruption. The court dismissed Plaintiffs’ due process claims for failure to exhaust. Plaintiffs appealed.

Result: The Ninth Circuit affirmed. The Court addressed Plaintiffs’ free speech claims in a three-step analysis. First, it discussed the legal framework for determining whether students may be disciplined for on-campus speech. Such speech may be restricted if “it might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities” or if “it collides with the rights of other students to be secure and to be let alone.” (Internal quotation marks and alterations omitted.) Moreover, certain categorical exceptions to the First Amendment, including obscenity and fighting words, have a broader sweep in the context of minors. Namely, students have no right to “target” classmates in a school setting “with vulgar or abusive language.” Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 141 S. Ct. 2038, 2047 (2021). Under these principles, there was no question Plaintiffs’ speech could have been punished had it occurred at school.

Second, the Court applied the Ninth Circuit’s test for determining whether off-campus speech may be regulated, which considers: “(1) the degree and likelihood of harm to the school caused or augured by the speech, (2) whether it was reasonably foreseeable that the speech would reach and impact the school, and (3) the relation between the content and context of the speech and the school.” In applying this test, the Court also considered the factors the Supreme Court identified in Mahanoy regarding off-campus speech. Under these factors, Plaintiffs’ speech bore a sufficient nexus to the school to warrant discipline.

Third, the Court rejected Plaintiffs’ argument that Defendants violated their rights under the California Constitution and California Education Code, explaining that those sources of law provide no greater protection than the First Amendment in this context. 

Finally, the Court dismissed Epple’s due process claim. Assuming without deciding that Epple had exhausted his remedies after the district court’s ruling, the Court held that the state court’s rejection of Epple’s bias claim had preclusive effect. Under California law, “[i]ssue preclusion applies: (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” Hardwick v. County of Orange, 980 F.3d 733, 740 (9th Cir. 2020). In holding this test was satisfied, the Court concluded that there was no material difference between state and federal due process law on the particular issue presented—meaning that the state court had adjudicated an “identical issue.”

Judge Gould concurred. He wrote separately to express his view that the First Amendment does not require courts to strike down government’s attempts to protect its citizens against hate speech, especially in the school context. In the event the Supreme Court “decides to reassess its precedents in this area,” Judge Gould would “urge the Court not to give any First Amendment protection for racist hate speech,” including by modifying its prior caselaw if necessary.