Chen Through Chen v. Albany Unified School District
| Decision Date | 27 December 2022 |
| Docket Number | 20-16540, No. 20-16541 |
| Parties | Kevin CHEN, THROUGH his Guardian Kai Dong CHEN, Plaintiff-Appellant, and Philip Shen, through his Guardian John Shen; Nima Kormi, through his Guardian Ellie Kormi; Michael Bales, through his Guardian Patricia Mingucci, Plaintiffs, v. ALBANY UNIFIED SCHOOL DISTRICT; Valerie Williams, in her personal and official capacities as Superintendent of the Albany Unified School District; Jeff Anderson, in his personal and official capacities as Principal of Albany High School; Melisa Pfohl, in her personal and official capacities as Assistant Principal of Albany High School, Defendants-Appellees, and Albany High School, Defendant. Cedric Epple, Plaintiff-Appellant, v. Albany Unified School District; Albany High School; Valerie Williams, in her personal and official capacities as Superintendent of the Albany Unified School District; Jeff Anderson, in his personal and official capacities as Principal of Albany High School; Melisa Pfohl, in her personal and official capacities as Assistant Principal of Albany High School; Charles Blanchard ; Jacob Clark; Kim Trutane; Albany Unified School District Board of Education, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Alan Alexander Beck (argued), Law Offices of Alan Beck, San Diego, California; Darryl D. Yorkey, Law Offices of Darryl Yorkey, Berkeley, California; for Plaintiffs-Appellant.
Seth L. Gordon (argued), Katherine A. Alberts, and Louis A. Leone, Leone Alberts & Duus APC, Concord, California, for Defendants-Appellees.
Before: Ronald M. Gould and Daniel P. Collins, Circuit Judges, and Roslyn O. Silver,* District Judge.
Opinion by Judge Collins ;
This case concerns a public high school's ability under the First Amendment to discipline students for assertedly "private" off-campus social media posts that, once they predictably made their way on to campus, amounted to "severe bullying or harassment targeting particular" classmates. Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy , ––– U.S. ––––, 141 S. Ct. 2038, 2045, 210 L.Ed.2d 403 (2021). We hold that, under the circumstances of this case, the school properly disciplined two of the involved students for bullying. We therefore affirm the district court's judgment rejecting the students' First Amendment claims against the high school and others.
Because this appeal arises from a grant of summary judgment against the student Plaintiffs, "we must credit [their] evidence as true and draw all reasonable inferences in [their] favor." Demarest v. City of Vallejo , 44 F.4th 1209, 1213 (9th Cir. 2022). For purposes of these appeals, we therefore take the following facts as true.
During the 2016–2017 school year, Plaintiffs-Appellants Cedric Epple and Kevin Chen were students at Albany High School ("AHS"), a public high school in Albany, California. In November 2016, at the suggestion of a friend, Epple created a private Instagram account to share comments "privately with my small group of friends." Unlike Epple's " ‘main’ Instagram account," which he used to "share images that are appropriate for a wide audience," he intended this new account, which operated under the username "yungcavage," to be "a private forum where [he] could share funny memes, images, and comments with [his] close friends that [they] thought were funny, but which other people might not find funny or appropriate." Epple attempted to keep the account "very private," rejecting several requests to follow the account and only approving requests to "follow" the account from "close friends" that he thought he "could trust to keep the material private." Over the ensuing months, Epple only allowed about "13 people to follow the account," including Chen. He "never intended any person outside [his] close group of friends to see the images [he] posted to the account." Chen "followed" the account using the Instagram username "kkkevinkkkkk." Chen likewise understood that Epple's second Instagram account was to "be a private forum (by invite only), exclusive to [their] friends, and a place where [they] could share sarcasm, jokes, funny images, and other banter privately." Not all of the persons who eventually followed the account knew who the owner of the account was.
Between November 2016 and March 2017, Epple used the account to make a number of cruelly insulting posts about various AHS students. 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. For example, in early February 2017, Epple uploaded a photograph in which a Black member of the AHS girls' basketball team was standing next to the team coach, who was also Black, and Epple drew nooses around both their necks and added the caption "twinning is winning." In another post, he combined (1) a screen shot of a particular Black student's Instagram post in which she stated "I wanna go back to the old way" with (2) the statement "Do you really tho?", accompanied by a historical drawing that appears to depict a slave master paddling a naked Black man who is strung up by rope around his hands. On February 11, 2017, he posted a screenshot of texts in which he and a Black classmate were arguing, and he added the caption "Holy shit I'm on the edge of bringing my rope to school on Monday." Other posts, although not referencing specific students, contained images either depicting, or making light of, Ku Klux Klan violence against Black people. One post included what appears to be a historical photograph of a lynched man still hanging from a tree; another depicts a Klan member in a white hood; and a third combines the caption "Ku klux starter pack" with pictures of a noose, a white hood, a burning torch, and a Black doll.
Epple also created several posts that, while omitting references to violence, still aimed highly offensive racist insults at identifiable Black classmates. In one, he uploaded an image of a Black student sitting in class that was captioned with the statement "The gorilla exhibit is nice today." In another post, Epple included side-by-side images of one of his Black classmates and a gorilla. Chen added a comment on that post stating, "Its too good," but one of the private account's other followers responded with a series of comments saying: "Hey not funny," "Fuck you," and "Delete this." Chen then responded to these comments with a further comment stating, "no fuck YOU you dirty zookeeping son of a bitch." Two of Epple's other posts feature the back of the head of two different Black students while each was sitting in class, with the first including his comment "Fucking nappy ass piece of shit" and the second saying "Fuck you." After a Black classmate asked to join the account, Epple made a post asking his followers, "Who the fuck is this nigger." Chen responded by "liking" that post.
In addition to the comments mentioned earlier, Chen contributed to the Instagram account on several other occasions. For example, he took a picture of a Black student during class, without her permission, and sent it by Snapchat with the caption, "She's eating a fucking carrot"; Epple then posted that captioned picture to the Instagram account. In comments on another post, Chen called a non-Black student who followed the account a "nigger" after the student guessed (incorrectly) that Chen was the owner of the account.
Although the "yungcavage" account was intended to be private, knowledge of its contents eventually spread to the school. During the weekend of March 18–19, 2017, one of the account's followers showed multiple photos from that account to the girls' basketball player who had been depicted with a noose. On Monday, March 20, that student, in turn, shared what she had learned with several other students who had been targeted by the account's posts. That same day, one of the followers of the account was asked to lend his phone to a student who claimed to need to call her mother, and while this student had the phone, she took it into the restroom, where she and another student took pictures of some of the contents of the yungcavage account. Those photographs were then shared with other students.
As knowledge of the account rapidly spread, a group of about 10 students gathered at the school, several of whom were upset, yelling, or crying. Although the next class period had started, the students "were all too upset to go to class." The school's Principal, Jeff Anderson, asked them to come to the conference room adjacent to his office, where they were joined by two of the school's Assistant Principals, Melisa Pfohl and Tami Benau. Benau stated that she had "never seen a group of students as upset as these girls were." The school administrators summoned the school's counselors and mental health staff to join them, and around the same time, some of the students' parents (who had presumably been contacted by their children) began to arrive.
After being shown some of the account's posts, Benau concluded that the posts depicting lynching and nooses could be construed as threats of violence, and she therefore called the police. The school administrators arranged for the students to provide written statements, and Benau and the police also interviewed some of the students. The next day, March 21, Anderson, Pfohl, and two police officers met with each of the three students who had been identified as being responsible for the account (Epple, Chen, and one other), together with at least one of the parents of each respective student. Epple "took full responsibility for creating all the images and posts." Chen admitted that he followed the Instagram account and that he had "liked" and commented on some of the posts. All three students were suspended for five days. A few days later, Anderson separately...
To continue reading
Request your trial
-
A.J. v. N. Clackamas Sch. Dist.
... ... J., Plaintiff, v. NORTH CLACKAMAS SCHOOL DISTRICT, Defendant. No. 3:20-cv-01322-MO United ... to the non-moving party to demonstrate, through ... the production of evidence listed in ... Sandoval)', Chen Through Chen v. Albany UnifiedSch ... Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d ... 1130, 1134 (9th ... ...