ALBANY, Calif. (KRON) — A bullying case that originated at a school in the East Bay and raised issues of First Amendment rights has hit a new juncture, according to a court filing from the United States Court of Appeals for the Ninth Circuit.
The case originated back in 2017 when multiple high schoolers were expelled from Albany High School for racist and threatening posts made to a private Instagram page. The students sued Albany United School District over the expulsions, and the case was appealed to the Ninth Circuit.
On Tuesday, the Ninth Circuit issued a ruling on the case. The ruling argues that AUSD took appropriate measures to protect the safety and welfare of students on campus, and that the speech posted to the Instagram account was not protected under First Amendment rights.
In November of 2016, Cedric Epple, a student at AHS, created a private Instagram account to share images with a close group of friends that may not have been deemed appropriate by others. He allowed close friends to follow the account, including fellow student Kevin Chen. Chen’s Instagram username was “kkkevinkkkkk,” according to the filing.
The court says that Epple used the account to create cruel, insulting posts about fellow AHS classmates. Some of the images included posts that were called disturbing by the court, and some targeted specific Black classmates with racist and violent memes.
One such post included a photograph of the AHS girls’ basketball team, which has a Black coach and one Black player. Epple drew nooses around their necks and posted the photo along with the caption, “twinning is winning.” In another post, Epple took a screenshot of an argument that he was having with a Black classmate, and posted it to social media with the caption, “Holy sh–, I’m on the edge of bringing my rope to school on Monday.”
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Epple also posted multiple images invoking the Ku Klux Klan and making light of the group’s violence against Black people. One such post included a photo of a Black man who had been lynched, his body still hanging from the tree. A post that had a picture of a noose, a white hood, a burning torch and a Black doll was shared with the caption “Ku klux starter pack.”
Epple and Chen also took pictures of their Black classmates without their knowledge, and posted the images to his page. Some of these images were paired with photos of gorillas, and when a fellow student commented that it wasn’t funny, he responded with, “No fu– YOU you dirty zookeeping son of a bi—.” When one of his Black classmates attempted to follow the account, Epple posted “Who the f–k is this ni—r?” Chen liked the post.
The week of March 20, 2017, one of the followers of Epple’s private account lent his phone to a classmate. While the classmate was in the restroom, she took photos of the private account. Those photos were then shared with fellow students.
About 10 students gathered at the school, many of whom were upset. AHS Principal Jeff Anderson and two assistant principals, including Tami Benau, brought the students into an adjacent room. Once they were shown the social media posts, Benau determined them to be threats of violence and called the police.
Epple, Chen and one other student were determined to be responsible for the account, but Epple took responsibility for creating the content on the page. The three students were each given five-day suspensions.
The impacts that the posts had on the students at school were big. Many students reported being unable to return to class because they were too upset, but some stated they were even afraid of some of their classmates after viewing the materials. One student missed multiple days after Epple made fun of her afro–her parents eventually withdrew her from the school altogether.
One student who was not named in the filings, but was also expelled, returned to AHS March 30, 2017. That student agreed to attend a restorative justice session at AHS with other followers of the account. As the session took place, over 100 protestors gathered outside to demonstrate.
The followers of the account in the restorative justice session hid inside for hours before deciding to leave. On their way out, a student demonstrator punched two of them in the face. One of the students ended up with a broken nose.
Chen and Epple were both scheduled to face expulsion hearings in June of 2017, but Chen and three others filed a federal suit against Albany United School District, and the court placed a temporary restraining order on his hearing. The AUSD board went forward with Epple, and he was formally expelled. Epple later filed a suit in federal court citing breach of First Amendment rights and violation of his due process rights during his expulsion hearing.
Tuesday’s court filing from the Ninth Circuit states that the panel agreed with the “district court’s judgment rejecting First Amendment claims brought by students against Albany High School.” The panel went on to say that the circumstances of the case called for Epple and Chen to be disciplined for bullying.
The teen’s attorneys argued that because the bullying took place off campus, the school should not have a right to regulate their speech. According to the court filing, the Supreme Court has previously determined that students do not have a First Amendment right to “target specific classmates in an elementary or high school setting with vulgar or abusive language.”
The filing called the posts “alarming” for the violent imagery that was utilized. Epple’s lawyers argued that because the images were posted in private accounts, they were controlled and therefore had a reasonable expectation that they would not have a negative impact on their “targets.” The court rejected this argument, saying the posts “predictably made their way on to campus.”