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Free Speech

Slurs Posted from High School Campus Can Be Punished Even If They Aren't "Disruptive" or "Fighting Words"

The result might have been different "if plaintiff's speech had occurred off-campus."


So held Judge Dale Drozd (E.D. Cal.) in Castro v. Clovis Unified School Dist., decided Friday:

Plaintiff is a former Clovis High School student who graduated in 2019. Plaintiff was scheduled to attend his graduation ceremony on May 30, 2019. On that same day, plaintiff posted to his personal Twitter page a picture of another classmate with the caption "nigger." Plaintiff posted the tweet while on the school's campus and during school hours. The classmate featured in the picture plaintiff posted is African American.

Another student saw the tweet and contacted defendant Stephanie Hanks—the site principal of Clovis High School—to inform her of the tweet and how it had upset the reporting student. Plaintiff and his parents were called into defendant Hanks' office, and plaintiff was provided with his high school graduation diploma and informed that he would not be permitted to walk at his graduation ceremony as a result of his May 30, 2019 online behavior.

{In his [Complaint], plaintiff alleges that defendants "censored and punished him for exercising his First Amendment right" to communicate with his "personal Nigerian-American friend who consented to Plaintiff's intercultural communication." Plaintiff appears to have alleged in his complaint that the student depicted in his tweet was a friend of his and that his comments should therefore not have been construed as inappropriate. However, plaintiff has presented no evidence on summary judgement supporting this assertion. Moreover, plaintiff's subjective state of mind is irrelevant. Under the framework set out by the Supreme Court in Tinker, the inquiry is simply whether the speech at issue interfered with the rights of other students to be secure and left alone.} …

Under the holding in Tinker v. Des Moines Indep. School. Dist (1969), schools are permitted to restrict student speech in two broad sets of circumstances: if the speech "might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities," or, alternatively, if the speech "collides 'with the rights of other students to be secure and to be let alone.'" "[C]onduct by [a] student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is … not immunized by the constitutional guarantee of freedom of speech."

{Given that this case concerns internet postings that occurred on-campus and during school hours, the decision in Mahanoy Area School Dist. v. B.L. (2021) does not meaningfully apply here, nor does it alter the court's application of the traditional Tinker framework governing when schools may regulate on-campus disruptive speech.}

The evidence presented by defendants here in moving for summary judgment fails to establish that plaintiff's actions posed a substantial threat of causing a disruption at Clovis High School's graduation ceremony. The only evidence that defendants have come forward with in this regard is a declaration by defendant Hanks in which the principal states that "[b]ased upon [her] professional background and experience, [she] believed that Plaintiff's tweet would cause a disruption before and during the graduation by way of media coverage or a further invasion of rights into other African American students in the graduating class." Although school officials may act prophylactically if it is reasonable under the circumstances, defendants have offered no evidence to support defendant Hanks' expressed concerns. Accordingly, the court cannot conclude on summary judgment that defendants were, as a matter of law, entitled to regulate plaintiff's speech due to the potential for disruption of an on campus graduation ceremony.

Nevertheless, defendants also contend that plaintiff's posting clearly interfered with "the rights of other students to be secure and to be let alone." … "[T]he precise scope of Tinker's interference with the rights of others language is unclear." That circuit court has held, however, that speech that "is merely offensive to some listener" is not sufficient, and does not fall within Tinker's scope. Although speech that is "merely offensive to others" does not fall within Tinker, it has been observed that "good guidelines exist for determining what constitutes impermissible interference with the rights of other students."

For example, the Ninth Circuit has concluded that sexually harassing conduct directed toward a student violates their right to be secure because it "threaten[s] the individual's sense of physical, as well as emotional and psychological, security." Additionally, in Shen v. Albany Unified Sch. Dist (N.D. Cal. 2017), the district court concluded that a school could punish students for liking and posting racist images and rhetoric online about other students and faculty … ("The posts in large part targeted fellow AHS students and school personnel with racist and derogatory comments."). In those cases, the speech "position[ed] the target as a[n] … object rather than a person[.]"

The Fourth Circuit's decision in Kowalski v. Berkeley Cnty. Schs. (4th Cir. 2011) is similarly instructive in this regard. In that case, discipline imposed by the school on a student for online harassment and intimidation of a peer was allowed, with the Fourth Circuit holding that personally derogatory speech is "not the conduct and speech that our educational system is required to tolerate, as schools attempt to educate students about 'habits and manners of civility' or the 'fundamental values necessary to the maintenance of a democratic political system.'" Similarly, as the district court in Shen observed:

Whatever the outer boundary might be of Tinker's interference inquiry, the[] cases establish that students have the right to be free of online posts that denigrate their race, ethnicity or physical appearance, or threaten violence. They have an equivalent right to enjoy an education in a civil, secure, and safe school environment.

Based on the evidence defendants have presented on summary judgment in this case, the court is compelled to conclude that defendants did not violate plaintiff's constitutional rights by disciplining him for his online post. While on school grounds and during school hours, plaintiff posted a picture of an African American student under the caption "nigger." Not only does such a post denigrate the portrayed student's "race, ethnicity, or physical appearance" due to the nature of that racial slur, but this speech likewise affected and invaded the rights of other students on that campus, who complained directly to defendant Hanks regarding the impact upon them of plaintiff's conduct.

Specifically, the evidence before the court on summary judgment establishes that another African American student texted Principal Hanks and explained how the offensive tweets had directly impacted her. Additionally, that same student posted multiple times on Twitter on May 30, 2019, complaining about plaintiff's tweet and stating that she "[had] a problem with it; a huge one in fact." The evidence also shows that plaintiff retweeted the complaining student's tweets multiple times in an apparent effort to ridicule or shame her. This evidence supports defendants' contention that they were permitted to punish plaintiff due to his interference with the rights and emotional security of both the student depicted in the original tweet as well as the student who saw the tweet and complained about it….

Nonetheless, the undersigned finds this case to be a close one. If no students' rights had been interfered with under the evidence or if plaintiff's speech had occurred off-campus, defendants may well not be entitled to prevail on the pending motion. See Mahanoy Area Sch. Dist. (finding that "the leeway the First Amendment grants to schools in light of their special characteristics is diminished" in the context of off-campus speech); Tinker (finding that school officials must "be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint"); Cohen v. California (1971) ("We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of privilege, these fundamental societal values are truly implicated.").

Nevertheless, the undisputed evidence presented on summary judgment in this case establishes that plaintiff's speech occurred on campus and at least the right of one individual student to be secure and to be let alone was interfered with by plaintiff…. "Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimate them, as well as to damage their sense of security and interfere with their opportunity to learn." …

{Plaintiff's speech at issue here could also likely be categorized as "vulgar" or "plainly offensive" under Bethel Sch. Dist. No. 403 v. Fraser (1986), but because the court may resolve plaintiff's free speech claim by applying the rationale of Tinker, it need not consider whether plaintiff's speech was also "plainly offensive" under Fraser.}

California also has a state statute, Cal. Educ. Code § 48950(a) (part of the so-called Leonaard Law), that provides extra protection for public high school students, but owing to what seem to be the plaintiff's lawyer's litigation decisions, the court didn't fully confront that argument:

Plaintiff's fourth cause of action is for the alleged violation of his right to be free from disciplinary sanctions under California Education Code § 48950(a). Section 48950(a) provides that schools may not discipline pupils "solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment of the United States Constitution or Section 2 of Article I of the California Constitution." In his opposition, plaintiff concedes that if the court grants defendants' motion as to his other free speech claims, the court should also dismiss his claim brought pursuant to § 48950(a).

That strikes me as an odd concession, given that—as the court pointed out—such speech might well have been protected "when engaged in outside of the campus," especially since in context that statutory provision likely means protected against criminal punishment or civil liability, apart from whether it's protected against administrative discipline. And the court added:

In one case the California Court of Appeal has referenced in passing that § 48950 "provides further protections for student free speech rights" beyond those present in the First Amendment or the California Constitution. Smith v. Novato Unified Sch. Dist. (2007). However, case law on the scope of those additional protections has been appropriately described as "quite sparse." Indeed, the parties submit no authority—nor is the court aware of any—that clarifies in what way § 48950 does or could afford greater First Amendment protections than those recognized by the Supreme Court in Tinker.

Congratulations to Anthony DeMaria, who represented the defendants in the case.