Court Temporarily Halts School’s Expulsion Of Student Who ‘Liked’ Racist Instagram Images

Four California high school students who were suspended earlier this year for their alleged support or complicity with a racist Instagram account will not immediately have to face the immediate possibility of expulsion or further disciplinary action after a federal judge granted a temporary restraining order against the school district.

Students from the small East Bay Area city of Albany, CA, do not dispute that they followed another student’s Instagram account that they admit had “prejudiced and potentially bigoted overtones.” This account, which is now deleted, reportedly featured threatening and insulting images of about a dozen female students (almost exclusively minorities).

After that account came to the attention of school administrators, several students were suspended for liking or commenting on these posts. After serving their suspension, four Albany juniors sued the school district [PDF], alleging violation of their First, Fourth, and Fourteenth Amendment rights.

They contend that the school not only wrongly suspended them for constitutionally protected conduct that occurred privately, outside of class, but that the administration put three of the plaintiffs at risk by forcing them to attend a public rally where the plaintiffs say they were attacked verbally and physically.

That complaint also sought a temporary restraining order that would prevent the school from moving forward with additional disciplinary actions, including expulsion, pending the outcome of the students’ lawsuit.

On Friday, a federal judge granted that order [PDF], explicitly halting one student’s June 1 expulsion hearing and barring the school from “holding any disciplinary proceedings or taking any other disciplinary action against plaintiffs based on the conduct that is at issue in this case.”

The judge said that this case raises serious questions about the First Amendment rights now that, “outside of the official school environment, students are instant messaging, texting, emailing, Twittering, Tumblring, and otherwise communicating electronically.”

“The application of the Supreme Court’s school speech jurisprudence to the type of off-campus speech at issue in this case raises open and complex questions that our circuit has expressly held are not amendable to ‘a one-size fits all approach,'” explains the judge. “The questions here include, among others: the degree to which First Amendment protections apply to the students’ off-campus speech on Instagram; which analytical framework applies and what outcome is dictated by the relevant analysis; and how, if at all, the analysis is affected by the fact that plaintiffs did not directly post the images but only commented on them.”

Given that these issues are serious enough to require that a court settle the dispute, the judge concludes that they are therefore sufficient for granting a restraining order.

The judge did not, however, grant the plaintiffs’ request for an injunction that would have forced the school to remove “any and all record of disciplinary action” against these students, or allow the students to make up work or take tests they missed as a result of the suspension. The whole point of a restraining order, explains the court, is to preserve the status quo. Scrubbing the students’ records or allowing them to retroactively improve their grades would go beyond the scope of merely keeping the status quo intact.

The students’ lawyers and the school will be back in court on July 13 for a hearing on motions for summary judgment.

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