Chen v. Albany Unified Sch. Dist.

• Decision Date: 27 December 2022
• Docket Number: 20-16540,20-16541
• Parties: KEVIN CHEN, through his Guardian Kai Dong Chen, Plaintiff-Appellant, 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 PHILIP SHEN, through his Guardian John Shen; NIMA KORMI, through his Guardian Ellie Kormi; MICHAEL BALES, through his Guardian Patricia Mingucci, Plaintiffs, 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

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.

Nos. 20-16540, 20-16541

United States Court of Appeals, Ninth Circuit

December 27, 2022

Argued and Submitted December 6, 2021 San Francisco, California

Appeal from the United States District Court for the Northern District of California D.C. Nos. 3:17-cv-02478-JD, 3:17-cv-03657-JD James Donato, District Judge, Presiding

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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.

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Before: Ronald M. Gould and Daniel P. Collins, Circuit Judges, and Roslyn O. Silver, ^[*] District Judge.

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SUMMARY^[**]

First Amendment/Free Speech

The panel affirmed the district court's judgment rejecting First Amendment claims brought by students against Albany High School and school officials after the students were disciplined for assertedly "private" off-campus social media posts that amounted to severe bullying or harassment targeting particular classmates.

The panel held that, under the circumstances of the case, the school properly disciplined two of the involved students for bullying. Students Kevin Chen and Cedric Epple claimed that defendants violated their free speech rights under the First Amendment, the California Constitution, and the California Education Code. They argued that their speech was not susceptible to regulation because they engaged in it off campus, and therefore defendants could not constitutionally discipline them.

First, the panel discussed the framework that the Supreme Court has established for determining whether school districts can discipline students for on-campus speech. Under that framework, students do not have a First Amendment right to target specific classmates in an elementary or high school setting with vulgar or abusive language. As a result, there was no question that Epple and Chen could be disciplined for their speech had it occurred on campus. The posts in the social media account include

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vicious invective that was targeted at specific individuals and that employed deeply offensive and insulting words and images that, as used here, contribute nothing to the "marketplace of ideas." Moreover, some of the posts used violent imagery that, even if subjectively intended only as immature attempts at malign comedy, would reasonably be viewed as alarming, both to the students targeted in such violently-themed posts and to the school community more generally. Nothing in the First Amendment would even remotely require schools to tolerate such behavior or speech that occurred under its auspices.

Second, the panel considered whether Epple and Chen were insulated from discipline because their speech occurred off campus. The panel concluded, taking into account the Supreme Court's recent decision in Mahoney Area Sch. Dist. v. B.L. ex rel. Levy, 141 S.Ct. 2038 (2021), that the speech bore a sufficient nexus to Albany High School and its students to be susceptible to regulation by the school. Specifically, the panel applied the sufficientnexus test, outlined in McNeil v. Sherwood Sch. Dist. 88J, 918 F.3d 700, 707 (9th Cir. 2019), to the speech at issue here, keeping in mind the additional considerations identified in Mahoney. Under McNeil, Epple's subjective intention to keep the account private was not controlling. The panel held that given the ease with which electronic communications may be copied or shown to other persons, it was plainly foreseeable that Epple's posts would ultimately hit their targets, with resulting significant impacts to those individual students and to the school as a whole. The remaining McNeil factors strongly supported the school's assertion of disciplinary authority. Although Chen's involvement in the account was substantially more limited that Epple's, the panel concluded that he was

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nonetheless properly subject to discipline as well. Chen contributed to the account multiple times in ways that were directly related to Albany High School. As with Epple, Chen's conduct had a sufficient nexus to Albany High School and, under Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), was properly subject to discipline. Accordingly, the panel rejected Epple's and Chen's claims that their First Amendment rights were violated by defendants' disciplinary actions towards them.

Finally, the panel concluded that the discipline did not independently violate the California Constitution or the California Education Code. Because California follows federal law for free expression claims arising in a school setting, Epple's and Chen's reliance on the California Constitution failed for the same reasons discussed above. The panel held that Epple's and Chen's reliance of California Education Code §§ 48950(a) and 48907 similarly failed, and it did not preclude defendants from disciplining Epple and Chen.

Epple claimed that he was deprived of his due process right to a fair hearing before an impartial tribunal because a member of the school board who voted to expel him was biased against him. The district court dismissed this claim on the ground that Epple had failed to exhaust judicial remedies. Even if Epple's judicial remedies were exhausted, the panel affirmed the dismissal of Epple's due process claim on the separate ground that a California state court's decision rejecting Epple's claims of bias had preclusive effect here.

Judge Gould concurred. He wrote separately, in light of the continued disturbing prevalence of hate speech, to

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underscore that the First Amendment and Supreme Court precedent do not require courts to always strike down a government entity's attempts to prevent harm to their citizens-especially in the context of hateful speech at schools harming children.

OPINION

COLLINS, CIRCUIT JUDGE

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, 141 S.Ct. 2038, 2045 (2021). We hold that, under the circumstances of this case, the school properly disciplined

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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.

I

A

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]

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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...