First Amendment Challenge to Discipline of 8th-Grader for "Racially Insensitive" Instagram Post Can Go Forward

The student had “posted a screenshot of a friend with a cosmetic mud mask on her face with the caption ‘when he says he’s only into black girls’ on her Instagram account.”

From R.H. v. Borough of Sayreville Bd. of Ed., decided May 12 by Judge Zahid Quraishi (D.N.J.):

On Saturday, February 11, 2017, A.H., then an eighth-grade student at Sayreville Middle School, posted a screenshot of a friend with a cosmetic mud mask on her face with the caption "when he says he's only into black girls" on her Instagram account. {Plaintiffs explain that the relevant post was made on a "Finstagram" (a contraction of "Fake" and "Instagram") account, which is intended for parody, as opposed to a real Instagram account, which is "for more polished and serious communications.} A.H. did not create the photo or draft the caption. A.H. added her own comment to the post that stated, "Ha, ha, ha! Love her – [laughing face], [laughing face]." A.H. posted the screenshot from her personal phone while she was at home, on an internet network and social media account unaffiliated with the Sayreville school system. A.H.'s friend in the post did not attend school in Sayreville.

On February 16, 2017, the Board received complaints regarding A.H.'s Instagram post. According to Plaintiffs, "[t]here were no altercations at Sayreville Middle School as a result of the post, no classes were canceled, and there was no need for an assembly to discuss the racial issues at the school." Rather "[t]he sole alleged disruption to the Board was to keep a close watch on the [Sayreville Middle School] students in the cafeteria due to the fear these students might confront A.H."

{In 2010, the State of New Jersey adopted what is known as the Anti-Bullying Bill of Rights Act. The Act sets forth the following definition for "Harassment, intimidation, or bullying":

"Harassment, intimidation or bullying" means any gesture, any written, verbal or physical act, or any electronic communication, whether it be a single incident or a series of incidents, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability, or by any other distinguishing characteristic, that takes place on school property, at any school-sponsored function, on a school bus, or off school grounds [when a school employee is made aware of such actions], that substantially disrupts or interferes with the orderly operation of the school or the rights of other students and that:

1. a reasonable person should know, under the circumstances, will have the effect of physically or emotionally harming a student or damaging the student's property, or placing a student in reasonable fear of physical or emotional harm to his person or damage to his property;
2. has the effect of insulting or demeaning any student or group of students; or
3. creates a hostile educational environment for the student by interfering with a student's education or by severely or pervasively causing physical or emotional harm to the student.}

In response to the complaints, the Board launched a HIB investigation. The Board's HIB Specialist ultimately found that A.H.'s Instagram post violated the Board HIB Policy. The principal of Sayreville Middle School and the superintendent of the school district accepted the HIB's Specialist's assessment. The Board then affirmed the HIB determination and thereafter rejected A.H.'s appeal of that decision. As a result, A.H. received a one-day suspension from school, was removed from the Student Council, prevented from attending a special trip for members of the Student Council, removed from the role of making the morning announcements at her school, and prohibited from attending a school assembly….

The court concluded that the Act and the Board HIB Policy based on the act weren't unconstitutionally vague, but concluded that plaintiff's First Amendment challenge to the disciplinary actions in this case could go forward:

Here, taking the allegations set forth in Plaintiffs' Complaint as true, much like the student's speech in Mahanoy Area School District, A.H.'s Instagram post "did not involve features that would place it outside the First Amendment's ordinary protection." The Instagram post included a screenshot of A.H.'s friend with a cosmetic mud mask on her face with the caption "when he says he's only into black girls," and the additional comment, made by A.H. herself, stating, "Ha, ha, Ha! Love her – [laughing face], [laughing face]." The post, while racially insensitive, did not amount to fighting words or obscenity. Rather, the post itself indicates that it was intended to be satirical (regardless of its satirical value), and, therefore, was the "kind of pure speech to which, were [A.H.] an adult, the First Amendment would provide strong protection."

Further, similar to the speech at issue in Mahanoy Area School District, A.H.'s Instagram post "appeared outside of school hours from a location outside the school"; "[s]he did not identify the school in her post[ ] or target any member of the school community with vulgar or abusive language"; and A.H. "transmitted her speech through a personal cellphone" on her personal Instagram account to her friends and followers. "These features of her speech, while risking transmission to the school itself, nonetheless … diminish the school's interest in punishing [A.H.'s] utterance."

The Board contends that A.H.'s social media post was not protected by the First Amendment because the post risked serious disruption to school activity. The Board specifically highlights that Plaintiffs even allege that, following complaints regarding the post, school administrators had to keep a close watch on students in the cafeteria due to fear of a confrontation between A.H. and other students, amid rising racial tensions at the school. But, considering the guideposts set forth in Mahanoy Area School District, increased supervision of students in the cafeteria likely does not amount to "the sort of 'substantial disruption' of a school activity or a threatened harm to the rights of others that might justify the school's action." "[F]or the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."

In Mahanoy Area School District, distractions in Algebra class and heightened tensions among members of the school's cheerleading team due to the speech at issue were insufficient disruptions to school activity to warrant disciplinary action. The same conclusion is justified here regarding the increased supervision of students in the cafeteria because of A.H.'s Instagram post. According to Plaintiffs, "[t]here were no altercations at Sayreville Middle School as a result of the post" and "no classes were canceled." Accepting the facts set forth in Plaintiffs' Complaint as true, as is necessary at this stage, "[t]he alleged disturbance here does not meet Tinker's demanding standard" for regulation of student speech, especially considering that with respect to "off-campus speech … the leeway the First Amendment grants to schools in light of their special characteristics is diminished." For these reasons, the Board's motion to dismiss Plaintiffs' First Amendment claims is denied.

That said, whether A.H.'s Instagram post caused a substantial disruption sufficient for regulation of the speech by the Board is ultimately an issue of fact that is inappropriate for resolution on the instant motion to dismiss. Should discovery further elucidate disruption to school activity caused by A.H.'s post, such evidence may place A.H.'s speech outside the protections afforded by the First Amendment….