Judge declares penalties for racist writings legal

The Albany Unified School District was on firm legal ground in punishing Albany High students who posted or praised a series of online racist messages, including images of nooses and a burning torch, that were aimed at other students and school staff, a federal judge has ruled.

The judge overturned suspensions of four other students who posted innocuous comments or none at all.

While the First Amendment protects even offensive speech, in the school environment “students have the right to be free of online posts that denigrate their race, ethnicity or physical appearance,” and the right to “an education in a civil, secure and safe school environment,” U.S. District Judge James Donato of San Francisco said in his ruling Wednesday.

The U.S. Supreme Court ruled in 1969 that schools could prohibit student speech that “materially disrupts” classes or invades the rights of others. Donato said the Albany school district complied with that standard last spring when it expelled the 16-year-old creator of the Instagram account and suspended five fellow students who posted comments approving of his messages over the next four months.

But he said the district went too far when it suspended three other students whose online com-

ments expressed no opinion of the messages, and a fourth who signed onto the account but posted no comments. Although their participation in the racist account may have been “hurtful and unsettling” to their classmates, it did not violate any students’ rights, Donato said.

Attorney Darryl Yorkey, who had argued that the students had a First Amendment right to post the messages, said Donato’s ruling provided some protection to free speech, but not enough.

“What this case really stands for is how much control the government should have over your personal life ... what freedoms we have to say and feel the things that we want,” said Yorkey, who represented most of the disciplined students. “Sixteen-year-olds make bad decisions, do things that hurt other people, because they’re young and they don’t know better,” but they shouldn’t be held to the same standards as adults, he said.

But two civil rights groups supported the school district’s actions.

“Hateful social media activity ... inflicts serious harm on students and school communities,” the Lawyers’ Committee for Civil Rights and the National Women’s Law Center said in a court filing. “Confronted by

“Students online posts have that the denigrate right to be their free race, of ethnicity or physical appearance” and the right to “an education in a civil, secure and safe school environment.” James Donato, district court judge, in his ruling Wednesday

such activity, school officials are entitled to act.”

A lawyer for the school district could not be reached for comment.

A student identified as C.E. created the account in November 2016 and made 30 to 40 posts through March 2017, Donato said. One showed a “Ku klux starter pack” with a noose, a burning torch, a black doll and a white hood. Others depicted a student and the school basketball coach, both of them black, with nooses around their necks, compared black students to gorillas, and added profane or racist captions to photos of black female students.

One participant in the account showed some of the postings to two of the targeted female students in mid-March, and the news spread rapidly around campus, Donato said. He quoted school officials who said groups of students were crying and became too upset to go to class.

The school called in mental health counselors, briefly suspended students who took part in the account and expelled C.E., who shut down his account shortly after it came to light. The youth later made a public apology, said Yorkey, his lawyer.

After most of the suspended students returned to class, the school ordered them to attend an outdoor “restorative justice” session on March 30, where angry fellow students berated them.

“It was almost like putting students into a pillory,” said Yorkey, who plans to file another suit over the episode.

Donato said the messages, although composed outside of school grounds, were clearly aimed at the school and could be treated like on-campus speech. He also said the school district was entitled to punish students who “liked” C.E.’s messages, such as one who commented “Its too good” on a posting comparing an African American student to a gorilla.