SAN FRANCISCO (CN) – A federal judge said Thursday that a Bay Area high school may have been within its rights to discipline students who liked and commented on racist images posted to a private Instagram account, although he expressed doubts over the severity of the punishments.
Some of the images depicted black female Albany High School students with nooses around their necks or side by side with apes.
Philip Shen, Nima Kormi, Michael Bales and Kevin Chen – who did not post the images, but who all acknowledged “liking” them – sued the school district, claiming their reactions to images on a private Instagram account is protected free speech, especially because the activity occurred off school grounds and outside of school hours.
Another student not in the group screen-captured the images, which were eventually shown to school administrators. The kids were all suspended for five days, and expulsion proceedings were initiated against Chen.
On their return to school, the students say they were also forced to line up in front of the student body where they were subjected to jeers and obscenities in the school’s version of a “healing exercise.”
The students claim they had to submit to several of these, including a voluntary “restorative justice” session, which was mobbed with angry demonstrators. At one point, two students were hit in the back of the head and one had his nose broken.
On the students’ First Amendment argument, U.S. District Judge James Donato said that since the images were of their fellow students, there is a connection between the speech and the school.
“I’m satisfied there is a sufficient nexus primarily because the posts portrayed other students and it did get to school,” he said.
But had the conduct occurred entirely off campus and didn’t involve other students, he added, the school would likely have a serious First Amendment problem.
“Here’s what concerns me. If these students just had an off-campus study group with online postings that was devoted to anti-Semitic or race-based teachings and didn’t mention any students or teachers – just a group of students off campus in their own time – you would agree the school would have no ability to reach out and sanction that kind of activity,” Donato told Katherine Alberts, a lawyer representing Albany Unified School District.
Alberts agreed, but said this isn’t the case here. “They were harassing, threatening posts about other students, so you can’t say it was not connected to the school,” she said.
Donato had already stepped in to block Chen’s expulsion hearing, writing in June, “The First Amendment is central to plaintiffs’ case, and there is no doubt that they have raised ‘serious questions’ under it.”
On Thursday, Donato said he also had doubts about the scope of the discipline, citing the standard set by the 1969 case Tinker v. Des Moines Independent School District, a watershed Supreme Court ruling for students’ First Amendment rights.
Under Tinker, the school must show that student expression would lead to either a substantial disruption of the school environment, or an invasion of other students’ rights. In this case, Donato said, there was only one poster, known for now as C.E.
Donato noted that none of the other students directly participated in the account.
“Everyone else was a bystander. One person didn’t even comment. All of them being lumped together for discipline, I have some qualms about,” Donato said. “Under Tinker there has to be a foreseeable, materially disruptive effect. I’m fairly satisfied that may be met for the poster, C.E. I’m having a hard time seeing how that can be attributed to students that just looked on. I don’t see how they fall within the disciplinary powers of the school. They have the perfect right to look on or comment.”
He said he was “genuinely mystified” as to why the one student who didn’t like or comment at all was punished.
“He didn’t respond in any way other than he accessed them, and that is a far net to cast for First Amendment proposes,” Donato said.
Alberts said that student should have spoken up against the racist images or at least alerted school authorities. Donato found that argument unreasonable.
“You cannot have culture where students have to be snitches and are expected to turn someone in at the risk of being disciplined,” he said.
Alberts said all of the students, regardless of their level of participation, contributed to bullying the girls in the photos.
“By liking the post, it’s adding on to the effect of the bullying,” she said. “It’s no different than you’ve got somebody doing the bullying on campus and everybody is standing around going ‘yeah,’ and showing their support.”
Alberts added that the girls did not see a difference between C.E. and the rest of the students.
“They see all of the other students who were followers of this account as joining in the bullying. It wasn’t the fact that it was just C.E. They saw the likes as approval and adding on to the fact that other students liked that they were being compared to a gorilla or liked the fact that there was a noose drawn around their neck,” she said.
Donato sympathized with the girls but said he needed to view the conduct through the lens of the case law.
“I appreciate how the individuals in the pictures would feel degraded offended or fearful and I accept that, but that is not the Tinker standard.”
Alberts said that in liking or commenting on the photos, the participants were interfering with students’ rights under Tinker. Donato was not convinced.
“Offensive speech alone is not interference with the rights of a student,” he said.