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.