(CN) — A Ninth Circuit panel ruled Tuesday that a Northern California public high school was within its rights to expel a student who posted numerous racist comments — comparing Black students to gorillas and making references to nooses and lynchings — on his private Instagram account and another student who had 'liked' or commented on the racist posts.
"The posts in the social media account include vicious invective that was targeted at specific individuals and that employed deeply offensive and insulting words and images that, as used here, contribute nothing to the 'marketplace of ideas,'" U.S. Circuit Judge Daniel Collins, a Donald Trump appointee, wrote for the unanimous panel. "Nothing in the First Amendment would even remotely require schools to tolerate such behavior or speech that occurred under its auspices."
Collins added that the posts, "once they predictably made their way on to campus, amounted to 'severe bullying or harassment targeting particular,'" and therefore fell under the school's purview.
The small Northern California suburb of Albany, population around 20,000 — less 5% off whom are Black — was rocked in 2017 by the story of an anonymous Instagram account spewing racist insults, many of them about Black students of Albany High School. The scandal led to widespread protests, at least six suspensions, two expulsions, five lawsuits and numerous headlines, including one from the Daily Mail reading, "Real life Mean Girls spark chaos at California school."
But the lawsuits raised serious questions: Was ''liking" an Instagram post free speech? Could schools discipline students for off-campus, online behavior? And could a private social media account be considered private?
The Instagram account that started it all, @yungcavage, was created by Albany High student Cedric Epple in 2016. The account was separate from Epple's personal account and was kept "private," meaning it could only be seen by those Epple approved. Only around 13 people, mostly fellow students, were ever allowed to see its contents. One of those was fellow student Kevin Chen, who described the account as a "private forum (by invite only), exclusive to [their] friends, and a place where [they] could share sarcasm, jokes, funny images, and other banter privately.”
According to Collins' summary of the case, Epple's posts ranged from "immature posts making fun of a student’s braces, glasses, or weight to much more disturbing posts that targeted vicious invective with racist and violent themes against specific Black classmates."
One post from February 2017 showed a screenshot of text messages between Epple and a Black student, who were arguing, along with the caption: “Holy shit I’m on the edge of bringing my rope to school on Monday.” Another showed a photograph of a Black student sitting in class with the caption, “The gorilla exhibit is nice today.” Other posts showed nooses drawn around black students' necks and made reference to the Ku Klux Klan and Jim Crow-era violence. In at least one, Epple used the N-word.
Chen mostly just liked and commented on posts — for example, of a post that compared a Black student to a gorilla, Chen commented, "Its too good." When another follower posted a series of comments saying "Hey not funny,” “Fuck you,” and “Delete this," Chen responded: “no fuck YOU you dirty zookeeping son of a bitch.”
In March 2018, rumors of the account began to spread. Eventually, one student borrowed another student's phone and took screenshots of the offending account, sending them to herself. The school's administrators eventually saw the images and expelled Epple and disciplined many of the students who had been following the account, including Chen. Most of the students sued in federal court, arguing that the school violated their First Amendment rights to freedom of speech tried to improperly regulate something that occurred off-campus.
In November 2017, a federal judge tossed out the consolidated lawsuit, finding the incident had disturbed a great many students at the school to the point where many of them had to miss class and meet with school counselors, warranting an intervention by the school. The Instagram account may have been free speech, the judge ruled, but it also "clearly interfered with ‘the rights of other students to be secure and to be let alone.'"
The three-judge Ninth Circuit panel agreed. Judge Collins wrote the "likelihood of substantial disruption of or material interference with school activities” from such malicious abuse aimed at particular students was "obvious."
He added, "Indeed, a failure by the school to respond to Epple’s harassment might have exposed it to potential liability on the theory that it had 'failed to respond adequately' to a 'racially hostile environment' of which it had become aware."
And Collins had withering words for Epple. "Having constructed, so to speak, a ticking bomb of vicious targeted abuse that could be readily detonated by anyone following the account, Epple can hardly be surprised that his school did not look the other way when that shrapnel began to hit its targets at the school," he wrote.
The panel found that while Chen's behavior wasn't nearly as bad as Epple's, "at the very least, Chen is akin to a student who eggs on a bully who torments classmates" and acted in a way that a school could discipline.
In a concurring opinion, U.S. Circuit Judge Ronald Gould, a Bill Clinton appointee wrote, "School boards properly have power to discipline the perpetrators of hate speech. School officials, and government officials more broadly, should not be unduly constrained in their attempts to regulate hate speech for the purpose of protecting the intended targets of said speech. This may require some refining of the Supreme Court’s prior guidance in its precedents."
Senior U.S. District Judge Roslyn Silver, a Bill Clinton appointee sitting by designation from the District of Arizona, rounded out the panel.
The attorney who represented Epple and Chen had not responded to a request for comment by press time.
In a written statement, a spokesperson for the Albany Unified School District said, "The Court's decision today is a crystal clear affirmation that the school district and school leadership must continue to do all it can to keep ALL students from being bullied or harassed in any form."
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