An Administrator's Guide to California Private School Law

Chapter 15 – Student Discipline

also reach campus.” The court found that it was reasonably foreseeable that Avery’s blog entry would come to the attention of the school and that people would contact the district as a result, which was the intent of the blog entry. In addition, the vulgar language in the blog made it reasonably foreseeable that the entry would cause a substantial disruption in the school environment. More importantly, the court held that even if the actual disruption may have resulted from events that preceding the blog posting, the entry created a “foreseeable risk” of disruption which permitted the school to take action against the student. In Wynar v. Douglas County School District, 2159 a high school student, while at home during after school hours, sent a series of instant messages from his MySpace account to his high school friends bragging about his weapons and threatening to shoot classmates on a killing spree at school. The high school friends who received the instant messages were alarmed, and reported the communications to the school. Even though the student claimed his instant messages were all a joke, the school disciplined him with suspension and temporary expulsion. In the lawsuit brought by the student, the court held that the school’s discipline of the student for his speech threatening violence did not violate the student’s First Amendment rights because the instant messages “presented a real risk of significant disruption to school activities and interfered with the rights of other students.” Shen v. Albany Unified School Dist., et al. 2160 A student referred to as C.E. at Albany High School (“AHS”), a public school in northern California, created an Instagram account and invited several AHS students to follow his private account. During the following several months, around nine AHS students started following C.E.’s Instagram account and C.E. had made roughly 30-40 posts, all of which included derogatory and racist comments, many of which targeted AHS students or employees, some even included photos of students or employees. Some of the posted photos had also been taken on school property. Though C.E. made all of the posts, other AHS students commented or liked the posts. When other students and employees became aware of C.E.’s private Instagram account, they were enraged and angry and upset students gathered in the school hallway, at which point the school principal learned of the account.

AHS expelled C.E. and suspended each of the students who had followed C.E.’s account. C.E. and the other students sued the school claiming that the discipline violated their First Amendment rights. The Court confirmed that creating the Instagram posts and liking or following them constitutes covered activity under the First Amendment. The Court also concluded, however, that the speech involved was also school speech because it was created and followed by AHS students, targeted AHS students and employees, some posts were directly related to school events, and some photos were taken on school campus. According to the Court, those facts established a nexus between the speech and school life, and made it reasonably foreseeable that the speech would reach or impact the school. The Court confirmed that speech may be a cause for discipline if it risks substantial disruption of the school environment or violates the rights of others to be secure, and that schools are responsible for preventing

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 530