Can Schools Suspend Students For ‘Liking’ Racist Posts On Social Media?

Four California students were suspended after "liking" and "commenting" on Instagram posts of a racial nature in March. On Monday, the students at Albany High School in the San Francisco Bay Area, sued the school district in response to their suspension, claiming the punishment they received violated their free-speech rights.

According to the lawsuit, the students — Philip Shen, Nima Kormi, Michael Bales and Kevin Chen — say the school administrators violated their First Amendment rights by exceeding its authority to discipline students. The lawsuit claims the posts were on a private account with no connection to school activity.

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The students are also claiming unspecified damages and a court order removing the suspensions from their records, saying schools cannot interfere in activities outside school premises and that the school district suspended students who passively followed the account.

“People of this age click ‘like’ to pretty much everything, and they'll respond in grunts and single syllables to pretty much anything,” Darryl Yorkey, an attorney for the students, said.

The incident began early March, when school adminsitrators were informed about a group of students making Nazi salutes in the hallways. On further investigation, it was found a group of students had posted racial memes on Instagram.

They showed 11 female students, mostly non-white, with nooses around their necks and those pictures were featured next to images of apes.

"On or about December 2016 or January 2017, Kevin Chen came upon several images that were posted privately on Instagram by another student. Kevin 'liked' several of the images and was responsive to comments previously made on two," according to the lawsuit.

Chen then posted one of the images on his own Snapchat account, which was then picked up by another student for his own private Instagram account.

“This to me is no different than having a private drawing book and making some offensive drawings at home and sharing them with a couple of my friends,” Alan Beck, an attorney for the students, said. He added: “Does the school have the right to ruin my life over something I was doing at my house?” according to Los Angeles Times.

Albany School District Superintendent Valerie Williams said in a statement: "The District is currently reviewing the lawsuit and will take appropriate action in responding to it.

"The district takes great care to ensure that our students feel safe at school, and we are committed to providing an inclusive and respectful learning environment for all of our students. The district intends to defend this commitment and its conduct within the court system."

Dan Horowitz however, a defense attorney who separately reviewed the lawsuit, said the students' claim has merit.

"Having childish or hateful beliefs off campus are 100 percent protected," he said, according to Mercury News. "The school’s publicizing of the matter and exposing the students to ridicule, negative characterizations etc. is deeply troubling. The students cannot defend themselves as they are barred from campus and have no ability to address the student body."

“You have the right to be racist in this country, and you have the right not to be racist in this country,” he added. “This turns the school into the Thought Police.”

In recent years, students across the country have often got into trouble for offensive social media posts and parties with racist themes, the Guardian reported.

According to an October, 2016 report by East Bay Times, officials at California High School in San Ramon said a student had confessed to being responsible for race-related graffiti found in a school bathroom.

In another January, 2016 incident, there were reports of a private school in San Francisco suspending 14 students after learning they attended a party with a "wigger" theme – a racist term that blends the word “white” with the N-word.

This California lawsuit, legal experts have argued, will provide federal courts with another opportunity to decide how strictly schools can regulate student speech. It also raises the question whether "likes" on social media should be treated similarly to original posts, or not.

"'Likes' are ambiguous in that they could be saying, 'This is funny,' 'I agree with it,' or 'I don't agree, but I want to stand up for your right to say it,'" said Eugene Volokh, who teaches free speech law at the University of California, Los Angeles, according to Fox 34 News.

Schools have the authority to limit freedom of speech in school premises, under federal law, according to First Amendment scholars. However, Aaron Caplan, a Loyola Law School professor in Los Angeles said courts have disagreed whether schools can punish students for off-campus activties.

"In my own view, students are entitled to speak just like everyone else when they are off campus," Caplan said. "The school should not say, 'You engaged in free speech over the weekend on your own time, but we will punish you because your speech has ripple effects that we don't like.'"