Student's Off-Campus Social Media Posts Bore Sufficient Connection to School to Permit the School Board to Discipline Student by Expelling Him.

Chen v. Albany School District || 9^th U.S. Circuit Court of Appeals, Dec. 27, 2022.

In November 2016, a high school student created a private Instagram account followed by a small group of classmates. The student pseudonymously posted racist memes, images, and comments, including photos of Black classmates, to the account. In March 2017, knowledge of the account's existence and content began to spread through the high school after another student shared photos of it. Students suffered severe mental and emotional distress, which affected their grades, caused them to miss class, and in one case, even to withdraw the high school. In June 2017, the high School Board held an expulsion hearing, and the student was expelled. The student filed suit in the Federal district court. The district court granted judgment in favor of the school district. The student appealed.

The Ninth Circuit Court of Appeals held that a student's off-campus speech is not necessarily beyond a school district's regulatory authority, but the speech must bear a sufficient connection to the school to allow regulation. Relevant considerations include (1) the degree and likelihood the speech would harm the school; (2) whether it was reasonably foreseeable that the speech would reach and impact the school; and (3) the relation between the content and context of the speech and the school.

The Court of Appeals observed that the student intended the Instagram account to be private, but it was foreseeable the posts would reach and impact the school, given how easily electronic communications may be copied.  Moreover, once the account's privacy was breached, the degree and likelihood of harm caused by the posts was significant, which was demonstrated by its impact on the students. Finally, the relation between the content and context of the speech and the school weighed in favor of upholding the district's disciplinary authority because (1) once the student's posts spread around the school, a number of students became the targets of severe bullying and harassment; and (2) although the student was free to espouse offensive, unpopular viewpoints, he was not free to disseminate harassing invective targeted at particular classmates.