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KEVIN CHEN V. ALBANY UNIFIED SCHOOL DISTRICT
Citation: Not availableDocket: 20-16540
Court: Court of Appeals for the Ninth Circuit; December 26, 2022; Federal Appellate Court
Original Court Document: View Document
The United States Court of Appeals for the Ninth Circuit affirmed the district court's ruling that dismissed First Amendment claims from students Kevin Chen and Cedric Epple against Albany High School and its officials. The students were disciplined for off-campus social media posts that constituted severe bullying and harassment targeted at specific classmates. The court clarified that while students have free speech rights, those rights do not extend to speech that employs vulgar, abusive language aimed at peers, especially in a school context. The panel noted that the offensive and violent nature of the posts contributed nothing to constructive discourse and could reasonably disturb the school environment. Thus, the discipline imposed by the school was deemed appropriate and constitutional under the established Supreme Court framework regarding student speech. The panel determined that Epple and Chen were not insulated from disciplinary action despite their speech occurring off-campus, referencing the Supreme Court decision in *Mahoney Area Sch. Dist. v. B.L.* The speech was deemed to have a sufficient nexus to Albany High School, warranting regulation under the *sufficient-nexus test* from *McNeil v. Sherwood Sch. Dist. 88J*. The panel noted that Epple's intent to keep his posts private was irrelevant, as the nature of electronic communications made it foreseeable that the content would reach its intended audience and impact both individuals and the school. While Chen's involvement was less extensive, he was also subject to discipline due to his contributions being closely tied to the school. The panel rejected their claims of First Amendment violations, concluding that the disciplinary actions did not violate the California Constitution or Education Code, as California aligns with federal standards on free expression in schools. Epple's due process claim regarding bias from a school board member was dismissed due to his failure to exhaust judicial remedies, and even if remedies were exhausted, a prior state court decision on bias had preclusive effect. Judge Gould emphasized the importance of balancing First Amendment rights with the need to prevent harm from hate speech in schools. The court ultimately upheld the school’s disciplinary actions against Epple and Chen for bullying. The appeal involves a summary judgment against student Plaintiffs Cedric Epple and Kevin Chen, requiring their evidence to be accepted as true and all reasonable inferences drawn in their favor. During the 2016–2017 school year at Albany High School in California, Epple created a private Instagram account, "yungcavage," to share humorous content with a select group of close friends. He limited access to about 13 followers, including Chen, emphasizing the account's exclusivity and intended privacy. Between November 2016 and March 2017, Epple posted numerous derogatory and offensive content targeting various AHS students, particularly focusing on Black classmates. Posts included mocking remarks about physical attributes, as well as deeply racist imagery and themes, such as nooses drawn around Black individuals and references to violence associated with the Ku Klux Klan. Specific examples include a post depicting a Black basketball player and coach with nooses and a post combining a Black student’s Instagram message with a historical image of a slave master. Epple also shared posts that made light of violent Klan imagery and used highly offensive racial insults against identifiable Black classmates. Chen participated in the commentary, endorsing some of the posts and engaging in derogatory exchanges with others who criticized the content. Epple posted derogatory comments and images of Black students on a private Instagram account, including offensive remarks about their appearance and identity. After a Black classmate requested to join, Epple asked, “Who the fuck is this nigger,” which was liked by Chen, who also contributed to the account by posting a photo of a Black student without permission, captioned with a derogatory comment. Chen further used racial slurs against a non-Black student. Although the account was private, its content became known at school, leading to significant distress among affected students, who gathered in an upset state. School administrators, including Principal Anderson and Assistant Principals Benau and Pfohl, responded by involving mental health staff and calling the police after determining that some posts could be seen as threats of violence. Statements were collected from students, and Epple and Chen admitted their involvement. All three responsible students were suspended for five days, with Anderson indicating that he would recommend expulsion due to harassment and bullying based on race and gender, in compliance with California and federal laws regarding the obligation to address such issues. On March 21, Anderson convened a faculty meeting to address a racially charged incident that had become widely known among students, leading teachers to feel unprepared and overwhelmed. Teachers expressed frustration at the timing of the meeting, as a significant number of students were already discussing the issue in class, which disrupted instructional plans. The incident involved an Instagram account that targeted several students with racist content, resulting in emotional distress and school absences. One student, feeling threatened, left school early, while another missed multiple days after being mocked for her appearance. The school counselors were overwhelmed with students seeking support for feelings of anger, sadness, and betrayal. Superintendent Valerie Williams reported significant trauma among affected students, with many expressing fear for their safety and declining academic performance. Parents organized a rally on March 26 to promote healing and stand against racism, receiving support from local school board member Kim Trutane. Following the incident, a student suspended for participating in the Instagram account attended a restorative justice session, which was met with protests that caused safety concerns among attendees. The situation escalated when a demonstrator physically assaulted two students leaving the session, resulting in one sustaining a broken nose. Chen and three other students filed a federal lawsuit against the Albany Unified School District (AUSD) on May 1, 2017, seeking to halt their expulsion hearings. A temporary restraining order was issued on May 26, preventing Chen's hearing. Epple’s hearing proceeded on June 1 and concluded on June 20, with expulsion votes occurring on June 22, where three board members, including Trutane, voted for expulsion. Epple appealed to the Alameda County Board of Education (ACBE), claiming bias from Trutane due to her past involvement in protests against him. The ACBE upheld Epple’s expulsion in September 2017, leading him to file a petition for a writ of mandate, which was denied by the state court on October 1, 2020, concluding that there was no evidence of bias. Subsequently, Epple filed another federal action against AUSD and several officials, alleging violations of his First Amendment rights and due process in the expulsion process. Chen had previously filed a similar suit against AUSD, Superintendent Williams, and others concerning free speech and due process violations related to his suspension. Additional lawsuits were brought by five other students linked to an Instagram account, all deemed related by the district court. On November 29, 2017, the district court ruled in favor of the defendants regarding the free speech claims of Epple, Chen, and four other plaintiffs. The court determined that the students’ speech was subject to regulation due to its connection to the school and potential to cause disruption, referencing the precedent set in C.R. v. Eugene School District 4J. Under Tinker v. Des Moines, the court found that the plaintiffs’ speech did indeed disrupt the school environment. However, the court noted that four remaining plaintiffs not involved in the appeal were not subject to discipline since their speech did not create a substantial risk of disruption. By April 2018, Epple, Chen, and one co-plaintiff were the only remaining plaintiffs. In August 2018, the district court dismissed Epple’s and Chen’s due process claims without prejudice due to their failure to file a petition for writ of mandate in California state court, necessitating exhaustion of available judicial remedies as per Doe v. Regents of the Univ. of Cal. The district court entered final judgment against them on July 27, 2020, after delays related to another co-defendant, and both plaintiffs timely appealed. The court had original jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367, while appellate jurisdiction was established under 28 U.S.C. § 1291. The appellate review was conducted de novo regarding both the summary judgment for their free speech claims and the dismissal of Epple’s due process claim under Federal Rule of Civil Procedure 12(b)(6). Epple and Chen alleged violations of their free speech rights under the First Amendment, California Constitution, and California Education Code, arguing that their off-campus speech should not be subject to school regulation. The court affirmed the district court's decision through a three-step analysis: First, it established that Epple and Chen could be disciplined for on-campus speech. Second, it evaluated whether their off-campus speech was insulated from discipline, concluding that it had a sufficient connection to the school, as per the Supreme Court's Mahanoy decision. Finally, it determined that the disciplinary actions did not violate the California Constitution or Education Code. The court emphasized that student speech rights differ from adult rights, especially within the school environment, and that schools can restrict student speech that could disrupt school activities or infringe on the rights of other students. The Supreme Court emphasized that demonstrating a risk of "substantial disruption" in school contexts requires more than a mere aversion to uncomfortable viewpoints. The Court noted that speech must go beyond being "merely offensive" to infringe on the rights of others. Minors' First Amendment rights differ from adults', allowing broader restrictions on certain speech categories, such as obscenity and "fighting words," particularly in school settings where special considerations apply. Schools are granted authority to prohibit threatening and harassing speech to maintain a safe environment. Offensive expressions permissible for adults may not be appropriate for minors in schools, where promoting "civil discourse" is essential. The Court concluded that a school could discipline students for speech that occurs under its supervision, especially when that speech is targeted, offensive, and contributes nothing constructive to discourse. Posts from the yungcavage account included targeted insults and violent imagery that could understandably distress both the individuals targeted and the school community at large, particularly when referencing historical acts of terror. Had the posts in question been secretly distributed flyers targeting specific students, the infringement on the rights of those students to feel secure would be evident. Severe harassment based on physical characteristics, such as sexual or racial harassment, undermines the targeted students' emotional and psychological security. Additionally, such harassment does not need to be directed at the complainant to create a hostile educational environment, and it is clear that this behavior can lead to substantial disruption of school activities. The First Amendment does not require schools to tolerate such abusive behavior, regardless of whether the posts are deemed unprotected threats or fighting words. The principal issue is whether the off-campus nature of the speech exempts it from school regulation. While the Tinker case focused on on-campus speech, it has been established that schools can regulate some off-campus speech. The Supreme Court's decision in Mahanoy clarified that public schools have less authority to regulate off-campus speech compared to on-campus speech. The Court did not create a broad rule defining off-campus speech but identified three characteristics that weaken the rationale for school regulation: (1) off-campus speech typically falls under parental responsibility; (2) the school cannot easily invoke its in loco parentis authority for such speech; and (3) the unique educational considerations that allow for greater regulation of on-campus speech do not apply as strongly to off-campus speech. Recognizing extensive authority for schools over off-campus speech could infringe on students' rights to express themselves freely, particularly concerning political or religious views outside of school settings. Schools have an obligation to protect the "marketplace of ideas," including unpopular opinions, and excessive authority over off-campus speech could undermine this principle. In the case of B.L.'s speech, the Court determined that her First Amendment rights were violated because her posts were made outside of school hours and from a non-school location, did not reference the school, and were intended for a private audience on social media. The Court noted that while B.L.'s posts could potentially reach the school, the school failed to demonstrate a "substantial disruption" to school activities that would justify its disciplinary actions, referencing the Tinker standard. The Supreme Court did not establish a broad rule defining off-campus speech but acknowledged existing standards for determining when schools can regulate such speech. A three-factor test was devised to evaluate the connection between off-campus speech and school interests, considering (1) the potential harm to the school, (2) foreseeability of the speech reaching the school, and (3) the relevance of the speech's content and context to the school. The Court's analysis of B.L.'s case aligned with these factors, assessing whether substantial disruption or threats to rights were present and evaluating the school's in loco parentis role in regulating off-campus speech. The excerpt examines the application of the McNeil sufficient-nexus test to evaluate Epple’s speech and its implications for school discipline. It emphasizes that despite Epple's intent to keep his Instagram account private, the foreseeability of the speech impacting the school community is critical. A follower disclosed the content to targeted students, demonstrating that Epple's posts could significantly affect those students and the school environment. The discussion references related case law, asserting that the potential for harm and the emotional distress caused to students—some of whom experienced severe repercussions such as academic decline and withdrawal from school—supports the school's disciplinary actions. Epple argues that the students’ reactions, driven by the offensive nature of the speech, should not outweigh the right to unpopular expression, referencing the Mahanoy decision which protects such speech. However, the text concludes that the severity and predictability of harm from the posts warrant the school's intervention, aligning with the McNeil framework. Epple's arguments regarding the school's disciplinary actions are ineffective given the context of his social media posts, which led to severe bullying and harassment of fellow students. The school's interest in maintaining a safe environment for its students is significant, particularly as the conduct in question falls under California Education Code section 48900.4, which allows for expulsion due to bullying. Epple's claim that his parents should manage his off-campus social media use fails to negate the school’s responsibility to protect students in its care, especially against racially charged harassment. The nature of Epple’s actions suggests a substantial threat to the school environment, as failure to act could expose the school to liability for not addressing a racially hostile environment. The severity of the racial bullying is highlighted as being disruptive to the educational process and harmful to affected students' well-being. Additionally, Epple's posts cannot be equated to historical examples of racist conduct, such as Nazi symbolism, as he did not argue that he was promoting similar ideologies. Epple's summary judgment motion characterized his posts as "politically charged" and satirical, yet he later described them as "juvenile and offensive" attempts at humor aimed solely at entertaining friends. His assertion that the school was censoring a disfavored ideological message lacks credibility, especially given the severe nature of the abuse directed at specific classmates. Epple’s posts, while not necessarily "fighting words" or true threats, were viewed as an intolerable form of expression for a secondary school context. The school administration's response to Epple's harassment aligns with the Tinker standard, which allows for disciplinary action without infringing on students' rights to express unpopular views. Chen, although less involved than Epple, also faced appropriate disciplinary measures for his contributions to an Instagram account that perpetuated harassment. His actions included sharing a private photo of a Black student without permission, making derogatory comments about classmates, and engaging in racist language. Chen's behavior, including liking and supporting Epple's abusive posts, positioned him as complicit in the harassment, comparable to someone who encourages a bully. The hostile environment for targeted students was intensified by the awareness that Chen and others participated in the abusive conduct. Overall, the school's disciplinary actions were justified given the context and the nature of the harassment involved. Chen's conduct, similar to Epple's, has a sufficient connection to Albany High School (AHS) and was appropriately subject to disciplinary action under the Tinker standard. Consequently, claims by Epple and Chen that their First Amendment rights were violated due to the disciplinary actions imposed by the Defendants are rejected. Their arguments asserting violations of the California Constitution and California Education Code sections 48950(a) and 48907 are also dismissed, as California adheres to federal law regarding free expression in school contexts. The court explains that their speech, occurring "outside of the campus," does not qualify for protection under the First Amendment, thus not violating the limitations of section 48950(a). Additionally, section 48950(d) allows for discipline related to harassment, threats, or intimidation unless protected by the Constitution. The court concludes that the speech involved constitutes harassment and is not constitutionally protected. The claim under California Education Code section 48907, which grants students freedom of speech, does not provide greater protection than the First Amendment and does not hinder the Defendants' ability to discipline Epple and Chen. Epple's assertion of a due process violation due to bias from a voting board member is also dismissed, as the district court found that he failed to exhaust judicial remedies required to challenge the administrative decision against him. Overall, the legal framework and precedents cited affirm that the Defendants acted within their rights to discipline Epple and Chen. Epple filed a petition for a writ of mandate against the ACBE's decision, which the superior court denied. He did not appeal the denial, claiming to have exhausted his judicial remedies and requesting that the district court's dismissal of his due process claim be vacated. Despite this, the dismissal is affirmed on the grounds of preclusive effect from the state court's ruling, which explicitly rejected Epple's bias claim regarding his procedural due process rights. The court found no significant bias among the AUSD members involved in his expulsion, asserting that Trutane's community involvement did not demonstrate the required bias for recusal. Under California law, a writ of administrative mandamus is the usual method to challenge final administrative decisions. The doctrine of issue preclusion prevents relitigating issues that have been definitively adjudicated in a prior case involving the same parties. Epple does not contest the criteria for issue preclusion but argues that the due process standards differ between state and federal courts. However, the court finds no substantial difference between the California standard, which requires a showing of "unacceptable probability of actual bias," and the federal standard, which Epple claims mandates recusal for any appearance of bias. Nasha's standard for bias, requiring either actual bias or an "unacceptable probability of actual bias," is derived from legal precedents, notably Breakzone Billiards v. City of Torrance and United States v. Oregon. This standard originates from Withrow v. Larkin, where the Supreme Court determined that due process is violated when the probability of bias from a judge is excessively high. The same standard was reiterated in Caperton v. A.T. Massey Coal Co., which emphasized that recusal is necessary not only for direct financial interests but also for high probabilities of bias. Epple's argument, asserting that the superior court did not address the federal due process issue he wishes to relitigate, is flawed since the court applied the established standard from Withrow and Caperton. Epple's reliance on a statement from Stivers v. Pierce suggesting that any appearance of bias violates due process misinterprets the established standard, which does not require proof of actual bias but rather a significant likelihood of bias. Consequently, Epple's due process claim has already been adjudicated in a California state court, and that decision is entitled to preclusive effect, barring Epple from relitigating the issue in federal court. This principle of issue preclusion applies regardless of the soundness of the state court's ruling. The district court's judgment is affirmed, with Circuit Judge Gould concurring. He emphasizes the issue of hate speech, noting its presence in the case and as a broader societal threat. Gould reiterates that hate speech, including symbols and messages that incite harm or contempt towards marginalized groups, does not necessarily receive full First Amendment protection in schools, where administrators are responsible for student welfare. He references the Supreme Court case Beauharnais v. Illinois, which upheld a criminal libel statute aimed at preventing publications that incite contempt or riots. While the relevance of Beauharnais has been questioned in some circuits, its rationale for protecting marginalized groups remains persuasive. Gould argues that courts should respect government efforts to safeguard citizens from hate speech, particularly in educational settings. He acknowledges dissenting opinions that view legislative efforts against hate speech as misguided but counters this with Justice Frankfurter's assertion that deeper societal issues underlie racial and religious tensions. Judiciary cannot restrict the legislature's policy choices unless explicitly limited by law, particularly in libel contexts. The libel rationale from Beauharnais has been weakened by New York Times v. Sullivan, which critiques the regulation of hate speech intended to protect democratic participation. Recent cases, such as R.A.V. v. City of St. Paul, reaffirm the legislature's ability to address hate speech due to its harmful effects. In Chen v. Albany School District, school officials aimed to shield students from hate speech that could imply violence, a decision supported by concerns over school safety and student rights. The judiciary's role is not to dictate educational policy but to ensure constitutional compliance. The public school environment heightens the responsibility to foster positive values and citizenship, emphasizing respect for all individuals, regardless of personal attributes. This reflects the constitutional principle that officials cannot define orthodoxy in personal beliefs while also recognizing schools' role in teaching respect essential for a pluralistic society. Hate speech fundamentally contradicts the values of the nation, fostering hateful thoughts and actions that can lead to violence and public harm. Courts would reject arguments for teaching hate speech in schools based on academic fairness, as it contributes little to the essential marketplace of ideas within educational environments. Schools should not be compelled to accept hate speech from students, and authorities are justified in taking action against racist comments, which are not protected by the First Amendment. The harmful impact of hate speech on ethnic and racial minorities must be considered, particularly in schools where children seek knowledge and enrichment. Specific examples illustrate how offensive imagery can deeply affect students from minority backgrounds, such as African American and Jewish children, by portraying them in dehumanizing ways. Each case should be evaluated on its unique circumstances, but the presence of egregious hate imagery warrants clear action. Governments and public schools must address systemic hatred within their domains, adhering to constitutional guidelines, while avoiding overreach into educational policy as cautioned by Justice Jackson. Justice Jackson emphasizes the importance of protecting constitutional rights, particularly free speech, while asserting that the primary responsibility for school governance lies with elected officials and school boards. He supports the authority of school boards to discipline students for hate speech, particularly when such speech dehumanizes African American students through racist imagery and language reminiscent of slavery and eugenics. Jackson argues that the actions of culpable racist students warrant punishment, especially given their apparent belief that they would face no repercussions for their behavior. He contends that school and government officials should not be overly restricted in their efforts to regulate hate speech to safeguard its targets. Jackson suggests that the Supreme Court may need to refine its previous rulings regarding hate speech, proposing a reinterpretation of the Brandenburg test to allow regulation based on a probable threat of violence rather than an imminent threat. He aligns with Justice Thomas's dissent in Virginia v. Black, arguing that hate speech should not be afforded First Amendment protections and asserting that the harm caused by such speech should not be overlooked. Jackson advocates for a broad interpretation of government officials' authority to protect students and foster a safe educational environment.