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Case 3:17-cv-02478-JD Document 59 Filed 06/23/17 Page 1 of 29

1 LOUIS A. LEONE, ESQ. (SBN: 099874)


KATHERINE A. ALBERTS, ESQ. (SBN: 212825)
2
SETH L. GORDON, ESQ. (SBN: 262653)
3 LEONE & ALBERTS
A Professional Corporation
4 2175 N. California Blvd., Suite 900
5 Walnut Creek, CA 94596
Telephone: (925) 974-8600
6 Facsimile: (925) 974-8601
E-Mail: lleone@leonealberts.com
7 kalberts@leonealberts.com
8 sgordon@leonealberts.com

9 Attorneys for Defendants


ALBANY UNIFIED SCHOOL DISTRICT,
10 ALBANY HIGH SCHOOL, VALERIE WILLIAMS
11 JEFF ANDERSON and MELISA PFOHL

12 THE UNITED STATES DISTRICT COURT


13 NORTHERN DISTRICT OF CALIFORNIA
14 PHILIP SHEN, et al. Lead Case No.: 3:17-cv-02478-JD
Plaintiffs, Case Nos.: 3:17-cv-02767-JD
15
3:17-cv-03418-JD
16 vs.
ALBANY UNIFIED SCHOOL DISTRICT, et DEFENDANTS NOTICE OF MOTION
17
al. AND CROSS MOTIONS FOR SUMMARY
18 JUDGEMENT AND OPPOSITION TO
Defendants. SHEN PLAINTIFFS MOTION FOR
19 SUMMARY JUDGMENT
RICK ROE, et al.
20 Plaintiffs, Date: July 27, 2017
Time: 10:00 a.m.
21 vs. Ctrm: 11, 19th Floor
ALBANY UNIFIED SCHOOL DISTRICT, et Judge: Hon. James Donato
22
al.
23 Defendants.
24 JOHN DOE
25 Plaintiff,
26 vs.

27 ALBANY UNIFIED SCHOOL DISTRICT, et


al.
28
Defendants

DEFENDANTS NOTICE OF MOTION AND CROSS MSJs Lead Case No.: 3:17-cv-02478-JD
AND OPPOSITION TO SHEN PLAINTIFFS MSJ
Case 3:17-cv-02478-JD Document 59 Filed 06/23/17 Page 2 of 29

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:


2 PLEASE TAKE NOTICE that on July 27, 2017 at 10:00 a.m., or as soon thereafter as
3 the matter may be heard in Courtroom 11 of the above-entitled court, located at 450 Golden
4 Gate Avenue, San Francisco, California, defendants Albany Unified School District, Valerie
5 Williams, Jeff Anderson, and Melisa Pfohl (collectively Defendants), will and hereby do
6 move the Court, pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, for an order
7 granting summary judgment in their favor as to all claims in the above-captioned consolidated
8 cases alleging violation of the First Amendment (the first and second causes of action in Case
9 No. 17-cv-02478 (the Shen Action); the fifth cause of action in Case No. 17-cv-02767 (the Roe
10 Action); and the first and seventh causes of action in Case No. 17-cv-03418 (the Doe Action)).
11 As set forth in the accompanying Memorandum of Points and Authorities, the Ninth
12 Circuit has made clear that school districts may discipline students for off-campus speech when
13 (i) there is a nexus between the speech at issue and the school, (ii) it was reasonably
14 foreseeable that the off-campus speech would make its way onto campus, and (iii) the factors
15 set forth by the U.S. Supreme Court in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.
16 503 (1969) are otherwise satisfied, i.e., the speech in question might reasonably lead to a
17 disruption of school activities or interfere with the rights of other students. C.R. v. Eugene Sch.
18 Dist. 4J, 835 F.3d 1142, 1149 (9th Cir. 2016). The undisputed evidence in this case shows that
19 every one of these factors is satisfied. Consequently, disciplinary action was permissible under
20 the First Amendment and Plaintiffs First Amendment claims fail as a matter of law.
21 This motion is based on this Notice of Motion and Motion, the Memorandum of Points
22 and Authorities set forth below, the declarations and supporting evidence filed herewith, all
23 pleadings in this action, as well as any evidence or arguments that may be offered in the brief
24 in reply or at hearing on the motion.
25 Dated: June 22, 2017 LEONE & ALBERTS
____________________________________
26
KATHERINE A. ALBERTS, ESQ.
27 Attorney for Defendants

28

DEFENDANTS NOTICE OF MOTION AND CROSS MSJs Lead Case No.: 3:17-cv-02478-JD
AND OPPOSITION TO SHEN PLAINTIFFS MSJ
1
Case 3:17-cv-02478-JD Document 59 Filed 06/23/17 Page 3 of 29

1 TABLE OF CONTENTS
Page No.
2
INTRODUCTION 5
3
FACTS SUPPORTING SUMMARY JUDGMENT 8
4
15
5 ARGUMENT
6
15
I. The U.S. Supreme Courts Holding in Tinker Applies in This Case
7
17
8 A. Plaintiffs speech had a sufficient nexus to school

9
B. It was reasonably foreseeable that the content of the Instagram 19
account would make its way onto campus
10
II. Under Tinker, Defendants were Authorized to Take Action to Address 20
11 Plaintiffs Online Activity
12
A. The Instagram Account Interfered with the Rights of Other Students 21
13
22
14 B. The Instagram Account Caused a Substantial Disruption at School
25
15 III. The Individual Defendants are Entitled to Qualified Immunity
16
IV. Defendants are Entitled to Summary Judgment on Plaintiffs State Law 26
17
Claim under Education Code 48950
18
28
19 CONCLUSION

20

21

22

23

24

25

26

27

28

DEFENDANTS NOTICE OF MOTION AND CROSS MSJs Lead Case No.: 3:17-cv-02478-JD
AND OPPOSITION TO SHEN PLAINTIFFS MSJ
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Case 3:17-cv-02478-JD Document 59 Filed 06/23/17 Page 4 of 29

TABLE OF AUTHORITIES
1

2 Cases
3 Ashcroft v. al-Kidd,
563 U.S. 731 (2011) ............................................................................................................... 24
4
Bell v. Itawamba Cty. Sch. Bd.,
5
799 F.3d 379 (5th Cir. 2015) ...................................................................................... 14, 20, 21
6
Bethel Sch. Dist. v. Fraser,
7 478 U.S. 675 (1986) ............................................................................................................... 13

8 C.R. v. Eugene Sch. Dist. 4J,


835 F.3d 1142 (9th Cir. 2016) ......................................................................................... passim
9
Davis v. Monroe Cty. Bd. of Educ.,
10
526 U.S. 629 (1999) ......................................................................................................... 6, 7, 9
11
Doninger v. Niehoff,
12 527 F.3d 41 (2d Cir. 2008) ..................................................................................................... 14

13 Ford v. City of Yakima,


706 F.3d 1188 (9th Cir. 2013) ................................................................................................ 23
14
Hazelwood Sch. Dist. v. Kuhlmeier,
15 484 U.S. 260 (1988) ......................................................................................................... 13, 26
16
J.C. v. Beverly Hills Unified Sch. Dist.,
17 711 F. Supp. 2d 1094 (C.D. Cal. 2010) .................................................................................. 25

18 J.S. v. Blue Mt. Sch. Dist.,


650 F.3d 915 (3d Cir. 2011) ................................................................................................... 14
19
Kowalski v. Berkeley County Sch.,
20 652 F.3d 565 (4th Cir. 2011) ........................................................................................... passim
21 Lavine v. Blaine Sch. Dist.,
22 257 F.3d 981 (9th Cir. 2001) ........................................................................................... passim

23 Layshock v. Hermitage Sch. Dist.,


650 F.3d 205 (3d Cir. 2011) ................................................................................................... 14
24
Lopez v. Tulare Joint Union High Sch. Dist.,
25 34 Cal. App. 4th 1302 (1995) ................................................................................................. 26
26 Matal v. Tam,
27 No. 15-1293 2017 U.S. LEXIS 3872 (June 19, 2017) ........................................................... 14

28

DEFENDANTS NOTICE OF MOTION AND CROSS MSJs Lead Case No.: 3:17-cv-02478-JD
AND OPPOSITION TO SHEN PLAINTIFFS MSJ
3
Case 3:17-cv-02478-JD Document 59 Filed 06/23/17 Page 5 of 29

1 Monteiro v. Tempe Union High Sch. Dist.,


158 F.3d 1022 (9th Cir. 1998) ........................................................................................ 4, 6, 19
2

3 Morse v. Frederick,
551 U.S. 393 (2007) ............................................................................................................... 13
4
Mullenix v. Luna,
5 136 S. Ct. 305 (2015) ....................................................................................................... 23, 24
6 Pearson v. Callahan,
555 U.S. 223 (2009) ............................................................................................................... 23
7
S.J.W. v. Lee's Summit R-7 Sch. Dist.,
8
696 F.3d 771 (8th Cir. 2012) ........................................................................................... passim
9
Saucier v. Katz,
10 533 U.S. 194 (2001) ......................................................................................................... 23, 24
11 Smith v. Novato Unified Sch. Dist.,
150 Cal. App. 4th 1439 (2007) ......................................................................................... 26, 26
12
Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
13
393 U.S. 503 (1969) ........................................................................................................ passim
14
Washington v. Recology S.F.,
15 No. C 14-05083 WHA, 2015 U.S. Dist. LEXIS 170823 (N.D. Cal. Dec. 22, 2015) ... 4, 19, 20

16 Wynar v. Douglas Cty. Sch. Dist.,


728 F.3d 1062 (9th Cir. 2013) ......................................................................................... passim
17

18 Statutes

19 20 U.S.C. 1681 (2012) ................................................................................................................ 6


42 U.S.C. 2000d (2012) .............................................................................................................. 6
20
Cal. Educ. Code 4(4), (5) (Deering) ......................................................................................... 25
21
Cal. Educ. Code 48900.4 (Deering) .................................................................................... 25, 26
22 Cal. Educ. Code 48907 (Deering) ............................................................................................. 26
23 Cal. Educ. Code 48950 (Deering) ....................................................................................... 25, 26
Cal. Educ. Code 48950(a) (Deering) ........................................................................................ 25
24
Cal. Educ. Code 48950(d) (Deering) ........................................................................................ 25
25

26 Other

27
Fed. R. Civ. P. 5.2(a)(3) ................................................................................................................. 5

28

DEFENDANTS NOTICE OF MOTION AND CROSS MSJs Lead Case No.: 3:17-cv-02478-JD
AND OPPOSITION TO SHEN PLAINTIFFS MSJ
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INTRODUCTION
1
While it is true that students do not shed their constitutional rights to free speech at the
2
schoolhouse gate, the U.S. Supreme Court has made equally clear that schools can and should
3
discipline students for certain types of speech, including speech that school administrators
4
reasonably believe will cause a substantial disruption at school or speech that impinges on the
5
rights of other students. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969)
6
([C]onduct by the student, in class or out of it, which for any reason materially disrupts
7
classwork or involves substantial disorder or invasion of the rights of others is, of course, not
8
immunized by the constitutional guarantee of freedom of speech.). In line with the High Courts
9
holding in Tinker, the Ninth Circuit has held on three separate occasions that school districts can
10
discipline students for off-campus speech (including comments posted online from a home
11
computer) so long as it is reasonably foreseeable that the speech will make its way onto campus,
12
there is a nexus between the speech and the school, and the factors set forth by the Court in
13
Tinker are otherwise satisfied. C.R. v. Eugene Sch. Dist. 4J, 835 F.3d 1142, 1148-53 (9th Cir.
14
2016); Wynar v. Douglas Cty. Sch. Dist., 728 F.3d 1062, 1067-72 (9th Cir. 2013); Lavine v.
15
Blaine Sch. Dist., 257 F.3d 981, 989 (9th Cir. 2001). The Ninth Circuit is not alone in this regard.
16
In a case with facts surprisingly similar to those presented in this case, the Eighth Circuit held
17
that a school district did not violate the First Amendment by suspending students who posted
18
racist commentssome of which were directed at classmateson a secret website created by
19
students for their own use. S.J.W. v. Lee's Summit R-7 Sch. Dist., 696 F.3d 771 (8th Cir. 2012).
20
This action involves allegations by nine students (collectively Plaintiffs) at Albany
21
High School (AHS) that they were wrongfully suspended after one of their fellow classmates
22
discovered that Plaintiffs were involved with a social media website containing what can only
23
be described as hate speech directed towards African Americans and females. Plaintiffs admit
24
to following and commenting on the website. While they do not actually disclose the content
25
of the website, Plaintiffs repeatedly characterize the content of the social media account as
26
political speech in their motion for summary judgment1 and only note in passing that [a]
27

28
1
Pl.s Mot. for Summ. J. p. 19 (Plaintiffs likes and comments were of a political nature).
DEFENDANTS NOTICE OF MOTION AND CROSS MSJs Lead Case No.: 3:17-cv-02478-JD
AND OPPOSITION TO SHEN PLAINTIFFS MSJ
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1 number of these images contained subject matter that could be considered bigoted or racist.
2 Decl. of Michael Bales 4. This is a gross understatement. The undisputed evidence in this
3 case shows that the social media account in question contained some of the most vile and racist
4 imagery in American history, including a photograph of a black person being lynched, an
5 image of a noose next to a torch and a Klu Klux Klan mask, and use of the word nigger.2 The
6 account also directly targeted several of Plaintiffs classmates, including a picture of a female
7 African American AHS student with a noose drawn around her neck, an image comparing an
8 AHS student to a gorilla, and multiple pictures making fun of AHS students nappy hair. As
9 least some of these pictures were taken at school without the victims consent. Not
10 surprisingly, Plaintiffs activity on the account was discovered by their classmates and caused a
11 substantial disruption on campus before school administrators ever learned of the existence of
12 the account. Once administrators did learn of the account, an investigation ensued, and
13 Plaintiffs were suspended. Further disruption continued to occur for several more days.
14 Now, worried that their disciplinary records will reflect poorly in their college
15 applications, Plaintiffs have instituted the present actions against the Albany Unified School
16 District (the District), Valerie Williams (the Superintendent of the District), Jeff Anderson
17 (the Principal of Albany High School), and Melisa Pfohl (the Assistant Principal of Albany
18 High School) alleging, among other things, that Defendants violated Plaintiffs rights to free
19 speech under the First Amendment and Education Code 48950, which codifies California
20 students right to free speech under the First Amendment.
21 This motion involves three actions that have been consolidated by the Court. The first
22 case was filed by four students (Philip Shen, Nima Kormi, Michael Bales, and Kevin Chen),3
23 against the District, Superintendent Williams, Principal Anderson, and Assistant Principal
24 Pfohl on May 1, 2017 (Case No. 17-cv-02478 (hereinafter the Shen Case)). The first cause of
25

26 2
See Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1034 (9th Cir. 1998) (stating that
the word nigger is the most noxious racial epithet in the contemporary American lexicon);
27
Washington v. Recology S.F., No. C 14-05083 WHA, 2015 U.S. Dist. LEXIS 170823, at *10
28 (N.D. Cal. Dec. 22, 2015) (the noose is one of the most vile symbols in American history, and it
recalls atrocious acts of violence committed against African Americans.).
3
Plaintiffs have disclosed their full names in violation of Fed. R. Civ. P. 5.2(a)(3).
DEFENDANTS NOTICE OF MOTION AND CROSS MSJs Lead Case No.: 3:17-cv-02478-JD
AND OPPOSITION TO SHEN PLAINTIFFS MSJ
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1 action in the Shen Case is for violation of the First Amendment and the second cause of action
2 is for violation of Education Code 48950. The second case also involves four students,
3 identified as John Doe, Rick Roe, Paul Poe, and Nick Noe (Case No. 17-cv-02767 (hereinafter
4 the Roe Case)).4 The fifth cause of action in the Roe Case is asserted against the District, Ms.
5 Williams, and Mr. Anderson, alleging violation of the First Amendment. The third case, which
6 was filed on June 13, 2017, involves a single student identified as John Doe (Case No. 17-cv-
7 3418 (hereinafter the Doe Case)),5 and only names the District and Superintendent Williams
8 as defendants. The first cause of action in the Doe Case alleges violation of the First
9 Amendment and the seventh cause of action alleges violation of Education Code 48950. For
10 the reasons set forth more fully below, the undisputed evidence in this case demonstrates that
11 each of these claims (all based on the First Amendment) fail as a matter of law. This Court
12 requested that only the claims based on violation of the First Amendment be addressed.
13 The Ninth Circuit has set forth a clear roadmap for how Plaintiffs First Amendment
14 claims should be analyzed. C.R., 835 F.3d at 1149. The Court first looks to whether there is a
15 nexus between the speech at issue and the school (i.e., whether the off-campus speech was
16 tied closely enough to the school to permit its regulation) and whether it was reasonably
17 foreseeable that the off-campus speech would make its way onto campus. Id. If those tests are
18 satisfied, then the Court applies the analysis in Tinker, which looks to whether the speech
19 might reasonably lead school authorities to forecast substantial disruption with school
20 activities or [interferes] with the rights of other students to be secure and to be let alone.
21 Wynar, 728 F.3d at 1070 (quoting Tinker, 393 U.S. at 508, 514). If either factor in Tinker
22 applies, then the District was authorized to discipline Plaintiffs without violating the First
23 Amendment. C.R., 835 F.3d at 1152.
24 The undisputed evidence in this case shows that every one of these factors is satisfied:
25 the social media account was created by students, for students, and targeted students on the
26

27
4
Counsel for the students in that action have not disclosed the identities of the Plaintiffs and
28 Defendants do not know their identities at the present time.
5
Defendants are aware of the identity of the Plaintiff in the Doe Case.
DEFENDANTS NOTICE OF MOTION AND CROSS MSJs Lead Case No.: 3:17-cv-02478-JD
AND OPPOSITION TO SHEN PLAINTIFFS MSJ
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1 basis of race and physical appearance; it was not only reasonably foreseeable that the racist and
2 harassing content of the account would make its way onto campus and disrupt school activities,
3 the images and comments did, in fact, make their way onto campus and caused a substantial
4 disruption. This disruption occurred prior to school administrators ever learning of the
5 existence of the account. Finally, and most importantly, the account directly targeted Plaintiffs
6 classmates and made fun of their appearances on the basis of race, which undeniably impinged
7 upon the victim students rights to be left alone. Contrary to Plaintiffs position in this case,
8 disciplinary action was not only permissible under the First Amendment, it was mandated
9 under federal and state laws prohibiting discrimination on the basis of race.6 Plaintiffs First
10 Amendment claims therefore fail as a matter of law and summary judgment should be entered
11 in favor of Defendants as to these causes of action.
12 FACTS SUPPORTING SUMMARY JUDGMENT
13 Plaintiffs are all students at Albany High School, located in the Albany Unified School
14 District. Around November 2016, a student at AHS (identified in the Roe Case by the fictitious
15 name Chris) created an Instagram account and invited several AHS students, including all the
16 Plaintiffs in this action, to follow the account. Shen Decl., 4; Kormi Decl., 4; Bales Decl.,
17 4; Chen Decl., 4.7 Plaintiffs Philip Shen, Nimi Kormi, and Kevin Chen all admit that they were
18 friends with the creator of the Instagram account and Plaintiffs Shen and Chen were present
19 when the non-plaintiff student had the idea of creating the account. Id. All Plaintiffs admit to
20

21

22 6
Titles VI and IX of the Civil Rights Act (42 U.S.C. 2000d & 20 U.S.C. 1681) require
23 schools receiving federal funding to take prompt action to remedy peer-on-peer harassment
based on race and gender. Monteiro, 158 F.3d at 1034 (Once on notice of the problem, a school
24
district has a legal duty to take reasonable steps to eliminate a racially hostile environment.);
25 Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999) (holding that schools may be held liable
under Title IX for peer-on-peer sexual harassment). The District was required to and did take
26 action in this case based on both of these federal mandates.
27 7
The student who created the account is identified in the Roe complaint by the fictitious name
28 Chris. Roe Case, Compl., 16. Chris is Student D in the Decl. of M. Pfohl. Counsel for
Plaintiffs in the Shen Case have indicated that they will be filing a separate suit on Chris behalf.
The analysis set forth herein applies equally to any First Amendment claims asserted by Chris.
DEFENDANTS NOTICE OF MOTION AND CROSS MSJs Lead Case No.: 3:17-cv-02478-JD
AND OPPOSITION TO SHEN PLAINTIFFS MSJ
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1 following and posting comments on the account.8 Shen Decl., 5, 6; Kormi Decl., 4, 5;
2 Bales Decl., 4, 5; Chen Decl., 5, 8. All Plaintiffs admit that the account contained subject
3 matter that could be considered offensive, bigoted, or racially insensitive. Chen Decl., 6; Shen
4 Decl., 6; Kormi Decl., 5; Bales Decl., 4. They are correct.
5 It is undisputed that, between November 2016 and January 2017, racist images and
6 comments were posted on the account, including: a photograph of a black person being lynched;
7 a drawing of black person stripped of his clothes, hanging from a tree, and being beaten with a
8 paddle by a person in colonial era clothing; a picture of an African American AHS student and
9 an African American AHS coach with nooses drawn around their necks; a Ku klux starter pack
10 (showing images of a Klan mask, an African American doll, a noose, and a torch); pictures
11 comparing African Americans (including an AHS student) to monkeys and apes; and multiple
12 pictures (taken on campus) making fun of AHS students nappy hair and skin color. Decl. of
13 Melisa Pfohl, Ex. A. It is also undisputed that the word nigger was used on the account. Id., p.
14 7. At least some of the images of the victim students were taken at school on cell phones without
15 the victims consent. Id., pp. 13, 14, 23. Plaintiff Kevin Chen has admitted that he provided at
16 least some of the pictures for the account and that he took at least one of the pictures during class
17 without the victims consent. Decl. of Pfohl 25.
18 On Saturday March 18, 2017, the Plaintiff in the Doe Case (hereinafter Student A)
19 told one of the girls whose image appeared on the sitethe female African American student
20 who had a noose drawn around her neckabout the existence of the Instagram account and
21 showed her some of the pictures on the account. Decl. of Student 1 2. The next day at school,
22 on the morning of March 20, 2017, the female student who had learned of the account, shared
23 the information with one of her friends who was also depicted on the account and told her about
24 a post in which the friend was shown next to a picture of a black person, stripped of his cloths,
25

26 8
Because counsel for the Plaintiffs in the Roe Case has not disclosed the identity of his clients
and because there were close to 20 students who followed Chris Instagram account, Defendants
27
are unable to provide evidence specifically directed at the Roe Plaintiffs. However, they all admit
28 in their complaint that they all followed and posted comments or likes on the account. Roe
Compl., 17, 19. The Plaintiff in the Doe Case, whose actions are described herein, also admits
to following and liking posts on Chris account. Doe Compl., 12.
DEFENDANTS NOTICE OF MOTION AND CROSS MSJs Lead Case No.: 3:17-cv-02478-JD
AND OPPOSITION TO SHEN PLAINTIFFS MSJ
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1 hanging from a tree, and being beaten by a white person. Id.; Decl. of Student 2 4-5. The
2 students then went to find their friends and other students who were depicted on the account.
3 Decl. of Student 1, 3. By this time, class had started, but [they] were all too upset to go to
4 class. Id. The students eventually gathered in the hallway near the Art building with some
5 students crying hysterically and others talking loudly about the posts. Id.
6 Shortly before lunch on Monday March 20, 2017, Assistant Principal Pfohl was alerted
7 by a campus monitor that several female students were gathered in the hallway of the Art
8 Building and that the students were upset. Decl. of Pfohl, 3. As Pfohl began to head toward
9 the Art Building, she saw that Principal Anderson had already responded and she saw a group
10 of students crying and yelling while walking towards the principals office with Mr. Anderson.
11 Id., 3. There were approximately 10 girls and all were very upset, with some crying and others
12 yelling. Decl. of Anderson 2. The intensity of the crying and yelling was very disturbing and
13 disruptive. Decl. of Benau 3. Once the students and Mr. Anderson were in the main office
14 conference room, they were joined by Assistant Principals Tami Benau and Ms. Pfohl. Decl. of
15 Anderson 3. The students began explaining that an Instagram account had been created by a
16 group of students at AHS that contained racist images and shamed students based on their
17 physical appearances. Id. The female students began identifying the students involved and all of
18 the Plaintiffs were identified, with Kevin Chen being identified as one of the
19 creators/contributors to the account. Id. The girls told administrators that they should talk to
20 Student A, who had disclosed the account to one of the victims over the weekend, and that he
21 could provide more information. Decl. of Benau 3. As Pfohl obtain witness statements from
22 the students, Benau left to talk to Student A in her office. Id.
23 Student A arrived in Ms. Benaus office, told her about the account created by Chris,
24 and informed her that Chris used the Instagram handle yuncavage. Id., 4. Student A also
25 showed Ms. Benau some of the posts on his phone. Id. Seeing images of a KKK member, a
26 black man being lynched alongside a student, and a black student and coach with nooses drawn
27 around their necks, use of the word nigger, and comments talking about bringing a rope to
28 school, Ms. Benau decided to call the Police Department. Id.; Decl. of Student 2 11. Ms.
Benau then asked Student A to email her the posts and left the office to check on the female
DEFENDANTS NOTICE OF MOTION AND CROSS MSJs Lead Case No.: 3:17-cv-02478-JD
AND OPPOSITION TO SHEN PLAINTIFFS MSJ
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1 students. Id. When she returned, Student A informed her that he could not send the posts
2 because the account had been shut down. Id., 5. However, as this was going on, one of the
3 girls in the office asked Ms. Pfohl if she wanted copies of the posts and explained that, after
4 learning about the account, one of the female students had asked to borrow the phone of the one
5 of the known followers and then taken pictures of the posts on her own phone. Decl. of Pfohl
6 8. After explaining how the pictures were obtained, the student sent them to Ms. Pfohl. Id.
7 Because the students in the office were visibly upset, administrators sent for school
8 counselors and mental health staff to come help calm the students down. Decl. of Pfohl 5. At
9 this point some of the female students parents began to arrive. Id. The police arrived a few
10 minutes after being called and, upon their arrival, they met with each of the girls and their
11 parents separately with Ms. Benau. Decl. of Benau 6. During these interviews, each student
12 explained what they knew of the account and who was involved, including a comment from
13 Kevin Chen calling someone a zookeeping son of a bitch, and another comment on the
14 account in which a follower stated Im so tired of this Im going to bring a rope to school on
15 Monday and that We could end this with a lynching. Id., 10-14. It was also learned during
16 these interviews that a group of boys, including Chris and others involved with the yungcavage
17 account had been harassing girls on the basis of race at school prior to the discovery of the
18 Instagram account. Decl. of Benau 7, 10; Decl. of Student 2 2-5. One victim student stated
19 that, earlier in the school year, a male student had taken a video of a female African American
20 student in class, posted it on social media, and Keven Chen made the comment stay in the cage
21 you zookeeper. Id., 7. Another victim stated that, in February 2017, one of the students
22 involved with the yungcavage account attempted to touch her hair in class while saying
23 touching the nap and being video recorded by another student. Id., 10; Decl. of Student 2
24 2-3. The victim reported that this video was posted on Instagram. Id.; Decl. of Student 2 3-4.
25 As a result of the incident, the victim stated that she was so upset that she wore her hair in a
26 bun for a week. Id. A picture of the same girl with her hair in a bun was taken without her
27 consent and posted on the yungcavage account. Id.; see also Decl. of Pfohl Ex. A p. 13. At the
28 conclusion of the interviews, some of the female students went home for the day with their
parents because they were too upset to return to class. Decl. of Student 1 8.
DEFENDANTS NOTICE OF MOTION AND CROSS MSJs Lead Case No.: 3:17-cv-02478-JD
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1 Principal Anderson and Assistant Principal Pfohl then decided to question the three
2 students identified by the targeted students as the main creators or contributors to the account,
3 which included Plaintiff Chen. Decl. of Pfohl 10. The administrators called each of the three
4 students parents and asked them to bring their student to school at 8:00 a.m. the next morning
5 (March 21, 2017) for a meeting with the principals and the police. Id. Principal Anderson and
6 Ms. Pfohl, along with two Albany police officers met with Kevin Chen and his father on the
7 morning of March 21, 2017. Id., 11. During the interview, Chen admitted to following the
8 account and commenting on some of the posts. Id. He admitted to using the Instagram handle
9 kkkevinkkkk but denied the connection between his use of kkkevin and the Klu Klux Klan.
10 Id., 11-12. Chen was shown several images in which kkkevinkkkk had liked the images
11 and Chen admitted to liking and commenting on the posts. Id., 11. For instance, Plaintiff
12 Chen liked a post entitled 20 Things The World Wouldnt Have If Black People Didnt
13 Exist, which included images of prisons, and image of a Klu Klux Klan member, and an
14 average IQ for the United States of 98. Decl. of Pfohl Ex. A p. 3. Also, in response to a post in
15 which an African American female student was compared to a gorilla, Plaintiff Chen
16 commented: Its too good. When another person objected to the post, Plaintiff Chen responded
17 with fuck you you dirty zookeeping son of a bitch. Id. p. 5. He also admitted to using the
18 word nigger on the account. Decl. of Pfohl 25. He initially denied any further involvement
19 with the account. Id. However, on March 24, 2017, Chen provided a written statement
20 concerning his involvement with the account and admitted providing at least one picture for the
21 account and that he took the picture of the female African American student in class without her
22 consent. Id., 25 & Ex. D to Pfohl Decl.
23 Administrators also spoke with Student A, who had disclosed the existence of the
24 account to one of the victims. Decl. of Pfohl 19. During the interview, he described what he
25 knew about the account and, later that day, he sent Ms. Pfohl a picture taken by Plaintiff Chen
26 in a classroom at AHS and posted on the account with the caption The gorilla exhibit is nice
27 today. Id. & Ex. C to Pfohl Decl. Among other things, the District learned that Student A had
28 liked the picture on the yungcavage account comparing a female African American AHS

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1 student to a gorilla. Pfohl Decl., Ex. A p. 5. Student A also took one of the pictures of a female
2 student that appeared on the account during class and without consent. Decl. of Student 2 4.
3 Plaintiff Nima Kormi was interviewed by school officials in the presence of police
4 officers on March 22, 2017. Decl. of Pfohl 18. During the interview, Kormi confirmed that he
5 posted to the yungcavage account using the Instagram handle nemokormi. Id. He was shown
6 the post on the account making fun of a white student and the comment from nemokormi that
7 This account is racism solely directed at black people followed by an emoji with a laughing
8 face with tears streaming down its face. Id. Kormi confirmed that he posted the comment. Id.
9 Plaintiff Bales was also interviewed by school officials in the presence of police officers
10 on March 22, 2017. Bales Decl., 6. During the interview, he admitted following the
11 yungcavage account and to using the Instagram handle dontevertalktostrangers6. Decl. of
12 Pfohl 21. He admitted to following the account for 2-3 months and liking every single post
13 without thinking much of it. Id. He remembered the offense posts like the one comparing a
14 female African American student to a gorilla and realized he should have reported it, but he did
15 not report it because he didnt have the gumption to report his friends. Id. He further identified
16 four students as posting images on the account, including Plaintiffs Chen and Shen. Id. Finally,
17 he admitted to commenting on the post entitled 20 Things The World Wouldnt Have If Black
18 People Didnt Exist. In response to this post, Plaintiff Bales commented: Who is the owner of
19 this amazing site? Benau Decl. 17.
20 Plaintiff Shen was called into the office and questioned by Ms. Pfohl in the presence of
21 two police officers on March 22, 2017. Shen Decl., 9; Pfohl Decl. 22. Shen admitted to
22 following the account and that his Instagram handle was um_phil. Pfohl Decl. 22. He was
23 shown an image that juxtaposed a picture of an AHS female student next to a picture of a black
24 person stripped of his clothes, hanging from a tree, and being beaten with a paddle by a person
25 dressed in colonial era clothing. Id., Ex. A p. 1. The text accompanying the image stated: wanna
26 go back to the old way. Id. The post shows that multiple individuals liked the post, followed
27 by a comment (apparently in response to the wanna go back to the old way comment) stating
28 Do you really tho? Id. Plaintiff Shen admitted that, in response to that comment, he posted the
comment yep. Id., 20.
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1 Knowledge of the existence of the account quickly spread among students without any
2 prompting or disclosure from school staff. Decl. of Anderson 22. On March 21, 2017, Principal
3 Anderson called a faculty meeting at the end of the school day to advise faculty about the
4 incident and how the school should respond. Anderson Decl. 19. At the meeting, many faculty
5 members told Anderson that he was telling them about the Instagram account too late, that news
6 of the account and its contents had spread widely among students, and that they had been dealing
7 with the incident all day. Id. Faculty informed Principal Anderson that a lot of students were
8 upset by what they heard and wanted to talk about it in class, which disrupted the teachers class
9 plans. Id. Other students expressed being afraid that they would end up in the posts. Id., 23. On
10 March 22, 2017, Anderson sent an email to the parents of AHS students informing them that the
11 school had learned that a small group of students had posted racially offensive material on a
12 social media site. Id., 20. Anderson did not name any names and did not provide any details. Id.
13 In response, parents contacted Anderson telling him that they already had heard of the account
14 and that their children were extremely upset. Id.
15 In the days following March 20, 2017, school officials were required to devote a large
16 amount of time dealing with the ramifications of the posts on the yungcavage account. Decl. of
17 Pfohl 29. For instance, on March 22, 2017, one female student who was depicted on the
18 account and her father met with a school administrator and informed her that the student was
19 afraid to go to a class that she shared with one of the Plaintiffs. Decl. of Student 1 9. Classes
20 were disrupted by students wanting to talk about the issues raised by the account and school
21 counselors and mental health staff were inundated with students needing help to handle their
22 feelings of anger, sadness, betrayal and frustration about the racist posts and comments. Decl. of
23 Pfohl 29. Indeed, the school had to bring in extra counselors to handle the large number of
24 students seeking help. Id. Simply put, the account not only affected the victims of the posts, who
25 missed multiple days of school due to the embarrassment of the posts and fear that they would
26 continue to be targeted (Decl. of Student 1 4), the posts also affected students and staff in
27 general. See Decl. of Newsome 3, 6 (explaining he was the coach depicted in the image with a
28 noose around his neck and that the incident has affected him to the extent that the questions

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1 whether he will be able to return as the girls basketball coach for the 2017-2018 school year).
2 See also Decl. of Williams 7-11 (explaining the disruption that the account has caused).
3 ARGUMENT
4 I. The U.S. Supreme Courts Holding in Tinker Applies in This Case
5 The Supreme Court has outlined four types of student speech that schools may restrict,
6 each governed by its own lead case. C.R., 835 F.3d at 1148. The firstvulgar, lewd, obscene,
7 and plainly offensive speechis governed by Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986).
8 The secondschool-sponsored speech, such as statements in a school newspaperis governed
9 by Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988). The thirdspeech promoting
10 illegal drug useis governed by Morse v. Frederick, 551 U.S. 393 (2007). The fourth and final
11 category is speech that does not fall into any of the other three categories, and is governed by the
12 holding in Tinker, 393 U.S. 503. Here, the speech at issue was not made at a school function
13 (Bethel), it was not made in connection with a school-sponsored publication (Kuhlmeier), and it
14 did not involve illegal drug use (Morse). That leaves this court with the holding in Tinker, in
15 which the Supreme Court held that that schools may restrict student speech in two broad sets of
16 circumstances: if the speech might reasonably lead school authorities to forecast substantial
17 disruption of or material interference with school activities, or, alternatively, if the speech
18 collides with the rights of other students to be secure and to be let alone. C.R., 835 F.3d at 1152
19 (quoting Tinker, 393 U.S. at 508, 514).
20 Plaintiffs claim that, because their speech was made on a private platform and thereby
21 completely outside of school, [their] speech does not fall under any school speech doctrine
22 [including Tinker]. Pl.s Mot. for Summ. J. p. 2.9 This argument completely ignores the wealth
23 of federal precedent on this issue, including binding precedent from the Ninth Circuit. Since
24 Tinker was decided in 1969, six circuits have addressed whether Tinker applies to off-campus
25

26 9
Plaintiffs recently filed a notice of supplemental authority directing the Court to the Supreme
Courts recent decision in Matal v. Tam, No. 15-1293., 2017 U.S. LEXIS 3872 (June 19, 2017).
27
While the case discusses the First Amendment, it arose in the trademark context and (more
28 importantly) did not involve student speech. The case has no application in this action. However,
if the Court desires supplemental briefing on the decision, Defendants will address the case at the
Courts request.
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1 speech. Five of those circuits, including the Ninth Circuit, have held that, under certain
2 circumstances, Tinker applies to speech which originated and was disseminated off-campus.
3 Doninger v. Niehoff, 527 F.3d 41, 48-50 (2d Cir. 2008); Kowalski v. Berkeley County Sch., 652
4 F.3d 565, 573-74 (4th Cir. 2011); Bell v. Itawamba Cty. Sch. Bd., 799 F.3d 379, 393-94 (5th Cir.
5 2015); S.J.W., 696 F.3d 771; C.R. v. Eugene Sch. Dist. 4J, 835 F.3d 1142, 1148 (9th Cir. 2016).
6 The only circuit to have addressed the issue and not conclusively found that Tinker applies in
7 certain circumstances is the Third Circuit. See Layshock v. Hermitage Sch. Dist., 650 F.3d 205,
8 219-20 (3d Cir. 2011) (en banc) (Jordan, J., concurring) (noting that Tinkers applicability to off-
9 campus speech remains unresolved in the third circuit); see also J.S. v. Blue Mountain Sch. Dist.,
10 650 F.3d 915, 931 & n.8 (3d Cir. 2011) (en banc). Not surprisingly, Plaintiffs rely on the
11 minority viewpoint expressed by the Third Circuit. Pl.s Mot. for Summ. J. pp. 14-16 (citing
12 Layshock and J.S.).
13 What Plaintiffs fail to recognize is that the Ninth Circuit has addressed this issue on three
14 separate occasions and expressly held that Tinker applies to off-campus speech under certain
15 circumstances. C.R., 835 F.3d at 1148-53; Wynar, 728 F.3d at 1067-72; Lavine, 257 F.3d at 989.
16 Indeed, Plaintiffs fail to cite the Ninth Circuits most recent ruling on this issue in C.R., which is
17 controlling in this case.
18 In C.R. the Ninth Circuit expressly addressed the issue of whether a school district may
19 discipline students for off-campus speech. C.R., 835 F.3d at 1148. The court noted that two tests
20 had been applied in other circuits to determine when a school may regulate off-campus speech.
21 Id. at 1149. The first test, known as the nexus test, asks whether a students off-campus speech
22 was tied closely enough to the school to permit its regulation. Id. (citing Kowalski v. Berkeley
23 County Schools, 652 F.3d 565 (4th Cir. 2011)). The second test asks whether it was reasonably
24 foreseeable that off-campus speech would reach the school. Id. (citing S.J.W. v. Lees Summit
25 R-7 Sch. Dist., 696 F.3d 771 (8th Cir. 2012)). The court in C.R. then noted that the Ninth Circuit
26 had previously applied both tests in Wynar without expressly adopting either test. Id., at 1150.
27 Ultimately, the court in C.R. stated that it would follow Wynar in applying both the nexus and
28 reasonable foreseeability tests to [determine whether the school could discipline the plaintiff for
off-campus speech]. Id. Thus, under the Ninth Circuits holding in C.R., the threshold question
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1 in this case is whether the speech at issue had a nexus to the school and whether it was
2 reasonably foreseeable that the speech would make its way onto campus. If those questions are
3 answered in the affirmative then Tinker applies.
4 A. Plaintiffs speech had a sufficient nexus to school
5 The nexus test asks whether a students off-campus speech was tied closely enough to
6 the school to permit its regulation. C.R., 835 F.3d at 1149 (citing Kowalski, 652 F.3d at 573). In
7 Kowalski, a high school senior was suspended for five days for creating a webpage on MySpace
8 that was largely dedicated to ridiculing a fellow student. Kowalski, 652 F.3d at 567. Following
9 the students suspension, she filed suit against the school district and school administrators under
10 the First Amendment, arguing that they were not justified in punishing her for speech that did not
11 occur on campus. Id. The District Court granted summary judgment in favor of the school
12 defendants and the student appealed. Id. On appeal, the Fourth Circuit affirmed, holding that the
13 students online activity had a sufficient nexus to the school because the webpage was designed
14 [for] students sent [to] students joined [by] students [and] the object of the attack was
15 a student. Id., at 576-77. The Ninth Circuit reached a similar conclusion in Wynar, finding that
16 school defendants had demonstrated a nexus between the off-campus speech and the school
17 because all individuals involved were students. Wynar 728 F.3d at 1069.
18 Here, the undisputed evidence shows that the Instagram account was designed by a
19 student to be viewed by students. Shen Decl., 4; Kormi Decl., 4; Bales Decl., 4; Chen Decl.,
20 4. Plaintiffs have not and cannot dispute that the account contained pictures of no less than 10
21 AHS studentsall of which attacked the victim students based on race or physical appearance.
22 Decl. of Pfohl, Ex. A p. 1 (picture of female student next to black person hanging from tree being
23 beaten by slave master), p. 5 (picture comparing female African American AHS student to
24 gorilla), p. 9 (picture comparing female student to cartoon image of an ant), p. 10 (picture
25 making fun of female students glasses), p. 12 (picture making fun of female students braces), p.
26 13 (picture of back of female African American students head and accompanied by comment
27 Fucking nappy ass piece of shit), p. 14 (picture of female African American students hair), p.
28 15 (team picture of AHS girls basketball team altered to show female African American student
and coach with nooses drawn around their necks), p. 16 (picture of female AHS student next to a
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1 container of cottage cheese), p. 17 (picture comparing African American AHS students hair to
2 cartoon character), p. 20 (picture comparing female AHS student to Jabba the Hutt), p. 21
3 (image of student next to photograph of black person being lynched), p. 22 (picture of female
4 AHS student and dark skinned male AHS student holding a sign on AHS campus, accompanied
5 by comment Did he color in that sign with his skin color), p. 23 (picture of female African
6 American AHS student (taken during class without her consent) accompanied by comment
7 Shes eating a fucking carrot). Similarly, Plaintiffs have not and cannot dispute that several of
8 the images were of students taken at school and, in some instances, taken during class without
9 the victims consent. Id., pp. 13-16, 22, 23; Decl. of Pfohl 25; Decl. of Benau 7, 10.
10 Put simply, as in Kowalski, the Instagram account in this case was designed by student,
11 for students, contained pictures of students and staff taken on campus, and attacked students and
12 staff on the basis of race and physical appearance. Under the holding in Kowalski, as approved
13 by the Ninth Circuit in C.R. and Wynar, a sufficient nexus existed between the content of the
14 account and school to warrant school administrators involvement.
15
B. It was reasonably foreseeable that the content of the Instagram account
16
would make its way onto campus
17

18 The second test applied by the Ninth Circuit is the reasonable foreseeability test. C.R.,

19 835 F.3d at 1151. Under that test, a school district may regulate off-campus speech if it was

20 reasonably foreseeable that off-campus speech would reach the school. Id., at 1149 (citing

21 S.J.W., 696 F.3d at 777). The facts and holding in S.J.W., which was cited with approval by the

22 Ninth Circuit in C.R., is instructive on this issue. There, two high-school-age brothers created a

23 website to discuss, satirize, and vent about events at their high school. S.J.W., 696 F.3d at 773.

24 When the brothers created the site, they used a Dutch domain name, which prevented U.S. users

25 from finding the site through online search engines. Id. The evidence showed that the brothers

26 posts included a variety of offensive and racist comments mocking black students as well as

27 sexually explicit and degrading comments about particular female classmates. Id. The brothers

28 testified that they only told five or six of their school friends and that they intended only their
friends to know about the site. Id., at 774. As in the present case, the student body learned of the
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1 website, reported it to school administrators, and the brothers were suspended for ten days, which
2 was extended to 180 day suspensions following a hearing. Id. The brothers thereafter filed suit
3 against the school district and moved for a preliminary injunction to lift the suspensions. Id.
4 The district court in S.J.W. granted the brothers motion for preliminary injunction and
5 the school district appealed. S.J.W., 696 F.3d at 774. The Eighth Circuit reversed, finding that
6 under the relevant case law, the district court abused its discretion in finding that the brothers had
7 shown a likelihood of success on their First Amendment claims. Id., at 776. Ultimately, the
8 Eighth Circuit applied the reasonable foreseeability test and determined that it was reasonably
9 foreseeable that a website created by two students would reach the school because the website
10 and its numerous offensive, racist, and sexually explicit posts were directed at the school.
11 Id., at 778. In other words, the court looked to the substance of the speech and the fact that it was
12 directed at specific classmates. The Ninth Circuit reached a similar conclusion in Wynar, holding
13 that it was reasonably foreseeable that instant messages between students in which one of the
14 students stated that he wanted to kill specific student would reach the school. Wynar, 728 F.3d at
15 1069 (Given the subject and addressees of [the plaintiffs] messages it should have been
16 reasonably foreseeable to [the plaintiff] that his messages would reach campus[;] Indeed, the
17 alarming nature of the messages prompted [the plaintiffs] friends to do exactly what we would
18 hope any responsible student would do: report to school authorities.).
19 Here, as discussed in the previous section, the Instagram posts in this case consisted of
20 hate speech, made fun of several students based on their appearances, and were directed at
21 specific students. Moreover, not only did the content and objects of the speech make it
22 foreseeable that the Instagram account would make its way onto campus, the undisputed
23 evidence shows that at least some of the pictures posted on the account were taken at school
24 during class and without the victims consent. Decl. of Pfohl Ex. A pp. 13-14 (images of the back
25 of two female African American AHS students heads), p. 23 (picture of female African
26 American student eating carrot during class). Under the holding in S.J.W., which was approved
27 by the Ninth Circuit in Wynar and C.R., it should have been reasonably foreseeable to Plaintiffs
28 that the posts containing hate speech, using the word nigger, and making fun of several
students would eventually make their way onto campus. Indeed, that is precisely what happened
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1 in this case when Student A told one of the victims about the account. Decl. of Student 1 2.
2 That student then told her friends, which caused the victims of the account to suffer emotional
3 harm. Id. 2-3, 8, 13. In other words, it was not only reasonably foreseeable that the speech
4 would make its way onto campus, the content of the account actually did spill into the school.
5
II. Under Tinker, Defendants were Authorized to Take Action to Address Plaintiffs
6
Online Activity
7

8 After applying the nexus and reasonable foreseeability tests, [o]nce the court has

9 determined that a students off-campus speech [i]s susceptible to regulation by the school, [the

10 court] appl[ies] Tinker to evaluate the constitutionality of the schools imposition of discipline.

11 C.R., 835 F.3d at 1150. Under Tinker, a school district may discipline a student for his or her

12 speech in two situations: (1) where the speech in question might reasonably lead school

13 authorities to forecast substantial disruption of school activities; or (2) where the speech

14 interferes with the rights of other students to be secure and to be let alone. C.R., 835 F.3d at

15 1149 (citing Tinker, 393 U.S. at 514). Both scenarios apply in this case.

16 A. The Instagram Account Interfered with the Rights of Other Students

17 The Supreme Court has made clear that a school may discipline a student for speech that

18 interferes with the rights of other students. Tinker, 393 U.S. at 514. While the precise scope of

19 Tinkers interference with the rights of others is unclear, Wynar, 728 F.3d at 1072, the Ninth

20 Circuit has held that sexually harassing speech, by definition, interferes with the rights of

21 students to be let alone because it positions the target as a sexual object rather than a person,

22 threatening the individuals sense of physical, as well as emotional and psychological, security.

23 C.R., 835 F.3d at 1152. Similarly, the court in Kowalski held that online bullying interferes with

24 a students rights because it can cause victims to become depressed and anxious, to be afraid to

25 go to school, and to have thoughts of suicide. Kowalski, 652 F.3d at 572. The same holds true

26 for racial harassment. Indeed, the Ninth Circuit has stated that [i]t does not take an educational

27 psychologist to conclude that being referred to by ones peers by the most noxious racial epithet

28 in the contemporary American lexicon [referring to the n word], [and] being shamed and

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1 humiliated on the basis of ones race would adversely affect a Black childs ability to obtain
2 the same benefit from schooling as her white counterparts. Monteiro, 158 F.3d at 1034.
3 As an initial matter, the image of a noose drawn around necks of an African American
4 student and an African American coach, as well as the post containing an image of a noose, a
5 torch, a Klu Klux Klan hood and mask, and a black baby doll, clearly constitute the type of threat
6 to physical security contemplated by the Ninth Circuits rulings in LaVine and Wynar. See Decl.
7 of Newsome 3 (stating that the images were not only offensive but frightening). Indeed, this
8 Court has previously stated that the noose is one of the most vile symbols in American history,
9 and it recalls atrocious acts of violence committed against African Americans. Washington v.
10 Recology San Francisco, No. C 14-05083 WHA, 2015 U.S. Dist. LEXIS 170823, *10 (N.D. Cal.
11 Dec. 22, 2015).
12 However, even setting aside the overtly threatening posts, the Instagram account in this
13 case also contained posts that made fun of Plaintiffs classmates on the basis of their race, such
14 as a picture comparing a female African American student to a gorilla, a picture of a female
15 student accompanied by the comment Fucking nappy ass piece of shit, a picture comparing an
16 African American AHS students hair to a cartoon character, and a picture of two a white female
17 AHS student with a non-white student accompanied by the racially derogatory comment Did he
18 color in that sign with his skin color. Decl. of Pfohl Ex. A pp. 9, 13, 15, 17, 22. But the posts
19 were not limited to racially derogatory comments. The Instagram account also made fun of a
20 female student with glasses, a female student with braces, compared one slender female student
21 with an ant, compared another female student to Jabba the Hutt, and juxtaposed the picture of
22 one female student next to a container of cottage cheese. Id., pp. 9, 10, 12, 16, 20. These posts
23 constitute bullying and harassment that is punishable under Education Code 48900(r) and
24 48900.4. Under the Ninth Circuits holding in C.R., such harassment should be found to interfere
25 with the rights of other students sufficient to authorize the District in this case to take action.
26 B. The Instagram Account Caused a Substantial Disruption at School
27 To determine whether the Instagram account in this case could have substantially
28 disrupted school activities, the court looks to all of the circumstances confronting the school
officials that might reasonably portend disruption. Wynar, 728 F.3d at 1070. Tinkers
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1 substantial disruption rule does not require school officials to wait until disruption actually
2 occurs before they may act. Id. Indeed, school administrators have a duty to prevent the
3 occurrence of disturbances. Id. When a disruption actually does come to fruition, the Tinker test
4 is satisfied and the analysis comes to an end. See Bell, 799 F.3d at 397 (Tinker allows a school
5 board to discipline a student for speech that either causes a substantial disruption or reasonably is
6 forecast to cause one [and] [t]he Tinker test is satisfied when[ ] an actual disruption occurs.).
7 The factors considered by courts in determining whether school administrators could forecast a
8 substantial disruption include, inter alia: the nature and content of the speech; the relationship of
9 the speech to the school; the intent of the speaker to disseminate, or keep private the speech;
10 whether the speaker expressly identified an educator or student by name or reference; and the
11 manner in which the speech reached the school community. Bell, 799 F.3d at 398.
12 Here, Plaintiffs have submitted declarations stating that they intended the Instagram
13 account and their activity thereon to be private. Looking to the nature and content of the speech
14 at issue, it is undisputable that some of the speechsuch as the image of the black person being
15 lynched, the nooses drawn around the necks of an AHS student and an AHS coach, and the use
16 of the word nigger constituted hate speech. Such speech has been found to satisfy the
17 substantial disruption test. S.J.W., 696 F.3d at 778 (holding that website with posts that contained
18 offensive and racist comments mocking black students was substantially disruptive). The same
19 holds true for the images and posts that do not fall into the category of hate speech. It is
20 undisputed in this case that the Instagram account contained posts that mocked students because
21 of their skin color,10 because of the curliness of their hair,11 because they wore glasses or
22 braces,12 and because of their weight.13 These posts constitute bullying and harassment, which is
23 punishable under Education Code 48900(r) and 48900.4. More importantly, such speech has
24 been held to satisfy Tinkers substantial disruption test. Kowalski, 652 F.3d at 574 (holding that
25 the targeted bullying and harassment of another student was substantially disruptive).
26

27 10
Decl. of Pfohl Ex. A pp. 5, 22.
11
28 Ex. A pp. 13, 14, 17.
12
Ex. A, pp. 10, 12.
13
Ex. A, pp. 9, 16, 20.
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1 Moreover, what Plaintiffs fail to appreciate in this case is that the Instagram account did,
2 in fact, cause a substantial disruption on campus when several female students, who should have
3 been in class, were found in the hallway of the school crying and yelling over the derogatory
4 images and comments that were posted about them on the account. Decl. of Student 1 2. This
5 disruption was caused prior to any school administrator or staff member learning of the account.
6 When administrators called the girls into the office, given the intensity of the students distress,
7 counselors and mental health staff had to be called in to come help calm the students down. Decl.
8 of Pfohl 5. These same girls were interviewed by law enforcement officers and then, because
9 they were too upset to return to class, the students left school early. Decl. of Student 1 8.
10 Indeed, in the days following the discovery of the account, school officials were required to
11 devote a large amount of time dealing with the ramifications of the posts on the yungcavage
12 account. Decl. of Pfohl 29. On March 22, 2017, one female student who was depicted on the
13 account and her father met with a school administrator and informed her that the student was
14 afraid to go to a class that she shared with one of the Plaintiffs. Decl. of Student 1 9. The same
15 student (who was a victim depicted on the site, has declared that she missed multiple days of
16 school due to the embarrassment of the posts and fear that they she would continue to be
17 targeted. Id., 4. One girl who was depicted on the account was pulled out of school entirely by
18 her parents after the student heard Plaintiffs braging about how they were going to win [this
19 lawsuit] and that they were no[t] going to be punished. Decl. of Student 4 4. Classes were
20 disrupted by students wanting to talk about the issues raised by the account and school
21 counselors and mental health staff were inundated with students needing help to handle their
22 feelings of anger, sadness, betrayal and frustration about the racist posts and comments. Decl. of
23 Pfohl 29. Indeed, the school had to bring in extra counselors to handle the large number of
24 students seeking help. Id.
25 Moreover, the impact of the content of the account was not limited to students. Coach
26 Newsome has declared under penalty of perjury that the image of him with a noose around his
27 neck has caused him emotional distress, resulted in physical symptoms, and caused him to
28 question whether he will return to his coaching position next year. Decl. of Newsome 6. The
effect that the account has had on the school is further set forth in the declaration of
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1 Superintendent Valerie Williams, explaining that the impact of the content of the Instagram
2 account has had a significant and ongoing impact on both teachers and students at AHS. Decl. of
3 Williams, 8-9. In sum, given that both Tinker factors are present in this case, the disciplinary
4 action taken against Plaintiffs did not violate the First Amendment.14
5 III. The Individual Defendants are Entitled to Qualified Immunity
6 The doctrine of qualified immunity shields officials from civil liability so long as their
7 conduct does not violate clearly established statutory or constitutional rights of which a
8 reasonable person would have known. Mullenix v. Luna, 577 U.S. __, 136 S.Ct. 305, 308
9 (2015) (internal quotation marks omitted). In analyzing a qualified immunity defense, the court
10 is required to determine: (1) whether a constitutional right would have been violated on the facts
11 alleged, taken in the light most favorable to the party asserting the injury; and (2) whether the
12 right was clearly established when viewed in the specific context of the case. Ford v. City of
13 Yakima, 706 F.3d 1188, 1192 (9th Cir. 2013) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001),
14 modified by Pearson v. Callahan, 555 U.S. 223, 233 (2009). The preceding section explained
15 why no constitutional violation occurred in this case. The following discussion explains why,
16 even assuming a disputed issue of material fact exists, the school administrator defendants are
17 nonetheless entitled to qualified immunity.
18 On the clearly established prong of the qualified immunity analysis, for Plaintiffs to
19 overcome the defense, they are required to show that, at the time of their suspensions, the case
20 law of the Supreme Court or the Ninth Circuit was sufficiently clear that every reasonable school
21 official would have understood that their conduct was unconstitutional. Mullenix, 136 S.Ct. 305,
22 308 (2015). The doctrine does not require a case directly on point, but existing precedent must
23 have placed the statutory or constitutional question beyond debate. Id. Further, the Supreme
24
14
25 Plaintiffs assert that, even if the suspensions were constitutional, Defendants placement of a
suspension in Plaintiffs permanent record is unconstitutional. Pl.s Mot. for Summ. J. p. 16
26 (quoting LaVine, 257 F.3d at 992). LaVine does not stand for the proposition cited. The Court
held that documentation added to plaintiffs file well-after the expulsion was improper. The court
27
made clear, however, that the school may have had justification to document
28 contemporaneously the reasons for its emergency expulsion. LaVine, 257 F.3d at 992. Plaintiffs
have presented no evidence that anything other than contemporaneous documentation is
contained in their cumulative files.
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1 Court has repeatedly told courts not to define clearly established law at a high level of
2 generality. Ashcroft v. al-Kid, 563 U.S. 731, 742 (2011). Rather, the inquiry must be
3 undertaken in light of the specific context of the case, not as a broad general proposition.
4 Mullenix, 136 S.Ct. at 308. The relevant, dispositive inquiry in determining whether a right is
5 clearly established is whether it would be clear to a reasonable [official] that his conduct was
6 unlawful in the situation he confronted. Saucier v. Katz, 533 U.S. 194, 202 (2001).
7 The question in this case is whether, in March 2017, it was clearly established that it
8 violates the First Amendment for school officials to suspend Plaintiffs for five days under the
9 circumstances of this case. The short answer to that question is no. The Supreme Court has not
10 addressed the issue of whether students may be punished for off-campus speech. The Ninth
11 Circuit has addressed the question on three separate occasionsand answered the question in the
12 affirmativebut each of those cases arose in a different factual context. LaVine involved a
13 student writing a poem off-campuswhich seemed to threatened bodily harm to the student
14 bodyand then bringing the poem to school for a teachers review. LaVine, 257 F.3d at 983
15 (holding school district could expel student). Wynar involved a student sending private instant
16 messages (from home) to classmates in which he threatened to shoot specific students at their
17 school. Wynar, 728 F.3d at 1064 (holding school district could suspend student). Finally, in C.R.,
18 a seventh grade male student was suspended for verbally sexually harassing two disabled female
19 students off-campus on the way home from school. C.R., 835 F.3d at 1147. The boy challenged
20 the suspension under the First Amendment and the Ninth Circuit held that the school district
21 could punish the student for off-campus speech under the circumstances. Id., at 1153.
22 The Individual Defendants believe that LaVine, Wynar, and C.R. all support the
23 conclusion that no constitutional violation occurred in this case. However, to the extent that the
24 cases do not involve the particular facts of this case, which involves hate speech and bullying and
25 shaming of specific students on an Instagram account, it would not have been clear to the
26 Individual Defendants that suspending Plaintiffs for their Involvement with the account violated
27 the First Amendment, particularly when the speech in question made its way onto campus and
28 caused a disruption. Moreover, at least two other circuits have addressed factually similar cases
and found that suspending students for similar conduct did not violate the First Amendment.
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1 S.J.W., 696 F.3d at 773 (Eight Circuit holding in 2012 involving private website that made fun of
2 and targeted particular students on basis of race and sex); Kowalski, 652 F.3d at 567 (Fourth
3 Circuit holding in 2011 involving creation of webpage on social media site that bullied a
4 particular girl at plaintiffs school). Given this case law, the Individual Defendants are entitled to
5 qualified immunity and summary judgment should be granted in their favor on Plaintiffs First
6 Amendment claim on that basis. See J.C. v. Beverly Hills Sch. Dist., 711 F.Supp.2d 1094, 1124-
7 26 (C.D. Cal. 2010) (finding school officials were entitled to qualified immunity on First
8 Amendment claim and granting summary judgment in their favor).
9
IV. Defendants are Entitled to Summary Judgment on Plaintiffs State Law Claim
10
under Education Code 48950
11

12 The Plaintiffs in the Shen and Doe cases assert causes of action under California

13 Education Code 48950, which provides that [a] school district shall not make or enforce a

14 rule subjecting a high school pupil to disciplinary sanctions solely on the basis of conduct that is

15 speech or other communication that, when engaged in outside of campus, is protected from

16 governmental restriction by the First Amendment. Cal. Educ. Code 48950(a). The statute

17 goes on to state, however, that This section does not prohibit the imposition of discipline for

18 harassment, threats, or intimidation, unless constitutionally protected. Educ. Code 48950(d).

19 Similarly, the legislative notes accompanying the statute expressly provide that All students

20 have the right to participate fully in the educational process free from discrimination and hate

21 violence and that institutions have an obligation to combat racism, sexism, and other forms of

22 bias, and a responsibility to provide equal educational opportunity. Educ. Code 48950 Notes,

23 Sec. 4(4) & (5). Moreover, Education Code 48900.4 authorizes suspension or expulsion if a

24 school official determines that the pupil has intentionally engaged in harassment, threats, or

25 intimidation, directed against school district personnel or pupils, that is sufficiently severe or

26 pervasive to have the actual and reasonably expected effect of materially disrupting classwork,

27 creating substantial disorder, and invading the rights of either school personnel or pupils.

28 Plaintiffs assert in their motion for summary judgment that Education Code 48950
provides greater protection to students free speech rights than that afforded by Tinker. Pl.s Mot.
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1 for Summ J. p. 19:3-4. This is incorrect. The California Court of Appeal has repeatedly
2 recognized that Education Code 48907 (which was enacted in 1978 and governs student speech
3 in school sponsored publications, such as school newspapers) constitutes a statutory
4 embodiment of the Tinker and related First Amendment cases at that time. Smith v. Novato
5 Unified Sch. Dist., 150 Cal.App.4th 1439, 1452 (2007) (quoting Lopez v. Tulare Joint Union
6 High Sch. Dist., 34 Cal.App.4th 1302, 1318 (1995)). What the courts in Smith and Lopez
7 recognized was that, after 48907 was enacted in 1978, the U.S. Supreme Court issued its
8 decision in Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) and held that under the First
9 Amendment, school officials retain broad authority to regulate student speech in school-
10 sponsored publications. Smith, 150 Cal.App.4th at 1452. The courts in Lopez and Smith
11 recognized that California law, including Education Code 48907 and 48950 extend students
12 free speech rights beyond that recognized by the U.S. Supreme Court in Kuhlmeiernot Tinker.
13 Indeed, Education Code 48900.4, which is quoted above and must be read in harmony with the
14 other provisions of the Code, sets forth a test that mirrors the standard in Tinker and authorizes
15 discipline for harassment, threats, or intimidation aimed at pupils or school personnel that may
16 reasonably cause a substantial disruption.
17 Under Education Code 48950, Tinker remains applicable. See Lopez, 34 Cal.App.4th at
18 1318. For the reasons set forth above, the content of the account in this case was not protected
19 under the First Amendment because it was reasonably foreseeable that the speech would make its
20 way onto campus and because it not only caused a substantial disruption at school, it also
21 constituted harassment of other students on the basis of race and physical appearance. As such,
22 because the speech at issue was not constitutionally protected, Defendants did not violate
23 Education Code 48950 and they are entitled to summary judgment on these claim.
24 ///
25

26 CONCLUSION
27 For the reasons set forth above, Defendants respectfully request that summary judgment
28 be entered in their favor on all First Amendment claims asserted in these consolidated cases.
Dated: June 22, 2017 LEONE & ALBERTS
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/s/Katherine A. Alberts _
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LOUIS A. LEONE, ESQ.
3 KATHERINE A. ALBERTS, ESQ.
SETH L. GORDON, ESQ.
4 Attorney for Defendants
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