SAN FRANCISCO (CN) — A federal judge found Wednesday that a Bay Area High School properly disciplined most of the students embroiled in a racist Instagram posting scandal that compared black classmates to gorillas, and referred to nooses and lynchings — even if some of the students merely “liked” the posts.
“Without question, the original posts and verbal comments are within the scope of the First Amendment,” U.S. District Judge James Donato ruled, but he found the Instagram posts also qualify as “school speech,” for which the Albany Unified School District was entitled to discipline the students who participated the most in the Instagram activity, including those who “liked” and commented on the posts.
Michael Bales, Philip Shen, Nima Kormi, Michael Bales, Kevin Chen, Paul Poe, and Rick Roe sued AUSD in May, along with a Doe student and C.E., the creator of the Instagram account. All claimed the district violated their First Amendment rights by punishing them for speech made outside school grounds, which they contended was unrelated to school activities. The students were suspended to varying degrees and C.E. was expelled.
C.E. started the private Instagram account @yungcavage in November 2016, and invited several fellow students at Albany High School to join. Those posts largely targeted black female classmates and staff.
One image showed a black female classmate and the AHS basketball coach with nooses drawn around their necks and was captioned “twinning is winning.”
Another post depicted the back of a black female student’s head and was captioned “F-cking nappy ass piece of sh-it.”
C.E. also posted a photo called a “Ku Klux starter pack” that featured a noose, a burning torch, a white hood and a black doll.
A student who heard about the account “borrowed” the cellphone of one of the plaintiffs and used it to take photos of the account and showed them to a friend. Copies of the posts spread throughout the school, causing tears and panic. Some students said they were afraid to return to school. One said she’d had difficulties since March this year “because she feels ‘paranoid about classmates taking photographs of me and using them in the most offensive ways.”
Albany, pop. 19,500, is in Alameda County, north of Berkeley and south of El Cerrito. Only 4.6 percent of its residents are black, according to city-data.com. Its residents are 49 percent white, 28 percent Asian and 11 percent Latino. The median household income in 2013 was $80,244, which was 33 percent higher than the statewide median of $60,190.
The degree to which the plaintiffs participated in the account varied. For instance, Philip Shen commented “yep” on C.E.’s post mocking a black student’s comment that she “wanted to go back to the old way.” Next to the student’s photo, C.E. had posted an image of a black slave being beaten by a white man and captioned it “Do you really tho?”
Kevin Chen wrote “its [sic] too good” on the gorilla post. Paul Poe liked every post on the account, Judge Donato noted, including the noose posts. Rick Roe liked the post about the black student’s head.
Donato said all of these likes helped throw the school into turmoil.
“There is no doubt that these plaintiffs meaningfully contributed to the disruptions at AHS by embracing C.E.’s posts in this fashion,” the judge wrote in his order on summary judgment motions.
For attorney Darryl Dale Yorkey, who represents C.E., Shen, Chen, Bales, Kormi and Noe, the case boils down to government intrusion into free speech.
“Where does the government’s ability to discipline you stop?” he said in a telephone interview Wednesday. “The First Amendment is kind of under fire. We live in a society where everyone has the entitlement not to be offended.”
Yorkey said the First Amendment is generally interpreted as a negative right: one that need not be asserted to be protected. It can be curtailed by the school if it interferes with the educational environment, but Yorkey said his clients’ conduct did not rise to that level.
“If a student does something out of school that could impact the school, that speech can be curtailed — like making a threat against a teacher. That speech has consequences. Not all speech is protected under the First Amendment,” he said. “But what’s important in this case is, what does a ‘like’ mean? What does being a bystander to someone else’s posting mean?”
Yorkey said Donato appeared to be giving great weight to the slightest hint of approval on the posts.
“The judge singled out Mr. Chen because he wrote ‘yep’ on a posting that was objectionable. I didn’t know how the word ‘yep’ can do that, but it seemed the judge implied he was teaming up with the poster,” Yorkey said.
The plaintiffs claimed they were protected by the 1969 U.S. Supreme Court ruling in Tinker v. Des Moines Independent School District, saying the school must show that student expression would lead to a substantial disruption of the school environment or an invasion of other students’ rights.
Donato disagreed and granted the district’s motion for summary judgment as to six of the students.
“Taken as a whole, the record firmly establishes that C.E. caused a substantial disruption at AHS,” he wrote. “That is enough under Tinker to support defendants’ disciplinary measures, and consideration of whether C.E. also invaded the rights of others is not necessary. Plaintiffs try to minimize the level of disruption by blaming the district for overreacting, but it is clear that with or without the intervention of school officials, the students learned about the @yungcavage account and had very strong reactions to it while at school. That the disruption fell short of a full-scale riot is also of no moment.”
Donato added: “The Supreme Court hardly indicated that Tinker applies only to when the school is in flames or out of control.”
Quoting Tinker, Donato said Shen, Chen, Roe, Doe and Poe “also clearly interfered with ‘the rights of other students to be secure and to be let alone.’”
The other plaintiffs, Bales, Noe, Kormi and another Doe student did not interfere with the rights of other students, Donato ruled, since their contact with the account was minimal.
Bales’s comment was: “Pls tell me who’s the owner of this amazing account.”
Kormi posted the ambiguous comment: “This account is racism directed solely at black people” with a laughing face emoji.
There is no evidence that Noe did anything other than follow the account.
Donato granted these plaintiffs summary judgment, writing: “Although some of these plaintiffs’ conduct may have been experienced as hurtful and unsettling by classmates, the court cannot say that their involvement affirmatively infringed the rights of other students to be secure and to be let alone.”
An attorney for the Albany Unified School District did not respond to a phone call seeking comment.