Wednesday, May 31, 2017
Judge Temporarily Blocks Student Suspensions in Racist Instagram Case, Highlighting the Need for Higher Court Guidance
This spring, students enrolled in the Albany, California, School District sent a racist instagram message. The message reportedly depicted African American classmates and the girl's basketball coach with nooses around their necks. The district took disciplinary action against the students, but also some students who had "liked" the message. Four of the students who liked the message filed a federal lawsuit, alleging that their behavior occurred off-campus and is protected by the First Amendment. The federal judge has now temporarily blocked the suspension of these students.The case has naturally stirred deep emotions and calls for reckoning in the school district. I don't want to take on those racial issues today, but focus on two legal tensions that the case highlights. First, our courts have still yet to settle on the proper legal standard for dealing with off-campus speech. The Supreme Court had an opportunity to clean up the law with Taylor Bell's lawsuit last year. Taylor Bell, as you may recall, was a Mississippi high school student who had heard that coaches at his school were sexually harassing female students, but the administration had done nothing. Taylor wrote a rap song and performed it on youtube, calling out the alleged injustice. For that, he was sent to an alternative school. While the case caught national attention and provided a good venue for analyzing the issues, the Court refused to hear the case.
Second, this Albany case provides another example of the vastly different approach that courts take to suspension cases involving speech and those involving everyday misbehavior. Although students' chances are always slim in court, they stand a reasonably decent chance of success when the school suspends them for saying immature things. When students do immature things, they have almost no chance at all. As the last few weeks of this school year have shown, students have been suspended for having waterguns in their cars, wearing the wrong hair style, and various other silly things that young people do when they can feel summer break around the corner. And don't forget, Ahmed Mohamed, who brought a fancy clock to school last year. The school thought he had a bomb and had him arrested. A court just bounced his lawsuit a few weeks ago.
The Trump Administration has signaled through its appointments and budget proposal that it will scale back enforcement efforts at the Department of Education's Office for Civil Rights. While courts may have thought the Obama administration had things under control, the shift by Trump reveals the fallacy of depending on the executive to establish baseline civil rights protections. It is time for courts to finally step up. As I argue in Ending Zero Tolerance, courts are the last line of defense for students' rights and they have the tools at their disposal to make a difference. They just have to take these cases seriously.