A federal appeals court in California recently upheld the expulsion of two students for racist Instagram posts. In Chen v. Albany Unified School District, the Court examined the extent of free speech protections for off-campus speech following the consequential 2021 Supreme Court decision in Mahanoy Area School District v. B.L. In Chen, one student plaintiff created a private Instagram account and used the account to post racist content about his classmates including references to the Ku Klux Klan, lynching, and racist language. While the account was private, thirteen individuals were allowed to follow the account. The student also encouraged others to comment on his posts and used racist slurs in the comments. When other students saw the posts, several students stated they felt “devastated,” “scared,” and school counselors attested that the impact on the student body was “significant.” School administrators suspended the students for five days, then subsequently decided to expel the several of the students involved.
After this determination, the student plaintiffs sued the District, alleging that the District’s disciplinary actions against them violated their First Amendment rights. Mainly, the plaintiffs argued that their speech was not “susceptible to regulation because it occurred off campus.” On appeal, the Court revisited the off-campus speech framework under Mahanoy. Under Mahanoy, SCOTUS stated that public schools may regulate off-campus speech but possess less authority in comparison to on-campus speech. The Court also utilized a three-factor test from McNeil v. Sherwood Sch. Dist. (a Ninth Circuit Case) to determine whether the speech has a “sufficient nexus” to the school to permit regulation and discipline. These factors include: “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 this case, the Court ultimately reasoned that these factors, taken as a whole, warranted the disciplinary action that the students received. First, there was sufficient evidence that the degree of harm caused by the posts was significant. Students felt targeted, bullied, and that their academic performance suffered. Second, because the images were screen-shotted, shared (via Instagram) or via text, it was “plainly foreseeable” that the images would be shared with the school community. It is notable that the plaintiff’s intention to make his account private was not discussed in the analysis. As to the third factor, the Court relied on Mahanoy’s holding that authorizes schools to discipline student’s speech in order to protect students from severe bullying or harassment, even if the speech occurs off-campus. Thinking in the alternative, the Court reasoned that had the school not disciplined the students there could have been additional harm to the school community. In reaching this conclusion, the Court also noted key differences between Manahoy and Chen. In Mahanoy, the plaintiff’s Snapchat picture was not aimed at a specific person and did not depict threats of violence. The Court also observed that in Mahanoy there was minimal disruption to the educational environment, whereas in Chen there was significant harm to the student body and the educational environment. Overall, given the circumstances in this case, the Court concluded that all three factors weighed in favor of the District.
As one of the first decisions to apply Mahanoy, this decision reiterates the importance of evaluating the totality of the circumstances when disciplining students for speech. Additionally, the Court’s analysis emphasizes the careful decision-making that school administrators must make when a student’s speech contains threats of violence to other students, even if such speech occurs off-campus. As this case law develops, we encourage an active review of your policies and procedures concerning student discipline for on/off-campus speech to ensure the process encompasses relevant risk assessments while ensuring students’ Due Process rights remain intact.