Federal court rules students can be disciplined for off-campus hate speech

Renata Cló
Arizona Republic
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The 9th U.S. Circuit Court of Appeals in San Francisco.

Schools across the West, including in Arizona, can expel or suspend students for off-campus hate speech on social media in some circumstances without running afoul of the First Amendment, a federal court ruled.

The 9th U.S. Circuit Court of Appeals decision stems from a 2017 case from California's Bay Area. Two students sued the Albany Unified School District, near Berkeley, after they were disciplined for speech made off-campus on social media.

One of the students created a private Instagram account during the 2016-17 school year and used it to share offensive posts targeting classmates. The other student who was disciplined also had a private Instagram account. He interacted with several of his classmate's posts by liking them or adding insulting comments.

"These 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," according to the Court of Appeals opinion.

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The private posts rapidly spread, leading the school principal and administrators to get involved. School staff decided to call the police because posts that depicted lynching and nooses "could be construed as threats of violence," according to the opinion. The two students were suspended from classes and expelled from school.

Bruna Pedrini, an education attorney in the Phoenix office of the law firm Fennemore Craig, said the federal court's ruling aligns with the rationale behind the most recent U.S. Supreme Court precedent on school speech.

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The high court's latest off-campus speech case resulted in a 2021 decision that sided with a cheerleader in Pennsylvania who was disciplined after she posted a profanity-laced video on Snapchat criticizing her school.

Pedrini said the Court of Appeals looked at how the Albany Unified case was different from the Pennsylvania case. The teen in that case was complaining generally about her cheerleading experience and expressing her dissatisfaction, not talking about specific classmates.

"It was just a very limited discussion and not directed at any specific individuals," Pedrini said.

In the more recent case, the Court of Appeals determined the social media posts by the two Albany students could lead to school discipline because some messages used violent imagery to target students, and the speech disrupted the school environment.

"The students who were targeted ended up missing school classes, they sought mental health care and some of them transferred," Pedrini said.

What does the ruling mean for public schools?

Susan Segal, an education attorney at the law firm Gust Rosenfeld who often represents districts in the Valley, said the Court of Appeals ruling gives more guidance to administrations analyzing whether they can discipline students for negative, off-campus speech that interferes with the educational mission of the school.

She said Arizona law and most school district policies address off-campus behavior, thus the court's ruling supports rules already in place.

"I can give you all sorts of scenarios we've had in the education context where kids have shown pictures of themselves with guns and say, 'People are going to be surprised tomorrow.' ... Sometimes they are false alarms, sometimes they aren't," Segal said. "We have to be on alert, and people are nervous, so it's important to be able to recognize the dangers of some of these posts."

Renata Cló covers K-12 education. Reach her at [email protected].

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