Slurs Posted from High School Campus Can Be Punished Even If They Aren’t “Disruptive” or “Fighting Words”
So held Judge Dale Drozd (E.D. Cal.) in Castro v. Clovis Unified School Dist., decided Friday:
Plaintiff is a former Clovis High School student who graduated in 2019. Plaintiff was scheduled to attend his graduation ceremony on May 30, 2019. On that same day, plaintiff posted to his personal Twitter page a picture of another classmate with the caption “nigger.” Plaintiff posted the tweet while on the school’s campus and during school hours. The classmate featured in the picture plaintiff posted is African American.
Another student saw the tweet and contacted defendant Stephanie Hanks—the site principal of Clovis High School—to inform her of the tweet and how it had upset the reporting student. Plaintiff and his parents were called into defendant Hanks’ office, and plaintiff was provided with his high school graduation diploma and informed that he would not be permitted to walk at his graduation ceremony as a result of his May 30, 2019 online behavior.
{In his [Complaint], plaintiff alleges that defendants “censored and punished him for exercising his First Amendment right” to communicate with his “personal Nigerian-American friend who consented to Plaintiff’s intercultural communication.” Plaintiff appears to have alleged in his complaint that the student depicted in his tweet was a friend of his and that his comments should therefore not have been construed as inappropriate. However, plaintiff has presented no evidence on summary judgement supporting this assertion. Moreover, plaintiff’s subjective state of mind is irrelevant. Under the framework set out by the Supreme Court in Tinker, the inquiry is simply whether the speech at issue interfered with the rights of other students to be secure and left alone.} …
Under the holding in Tinker v. Des Moines Indep. School. Dist (1969), schools are permitted to restrict student speech in two broad sets of circumstances: if the speech “might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities,” or, alternatively, if the speech “collides ‘with the rights of other students to be secure and to be let alone.'” “[C]onduct by [a] student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is … not immunized by the constitutional guarantee of freedom of speech.”
{Given that this case concerns internet postings that occurred on-campus and during school hours, the decision in Mahanoy Area School Dist. v. B.L. (2021) does not meaningfully apply here, nor does it alter the court’s application of the traditional Tinker framework governing when schools may regulate on-campus disruptive speech.}
The evidence presented by defendants here in moving for summary judgment fails to establish that plaintiff’s actions posed a substantial threat of causing a disruption at Clovis High School’s graduation ceremony. The only evidence that defendants have come forward with in this regard is a declaration by defendant Hanks in which the principal states that “[b]ased
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