A “Ku klux starter pack,” featuring a noose, a burning torch, a black doll, and a white hood. A screenshot of an African-American student juxtaposed with an image of a white man beating a black slave hung by his hands. A picture of a high school student and the high school basketball coach, both of whom are African-American, with nooses drawn around their necks. Multiple comparisons of African-American women and students to gorillas.
These were the vile racist and sexist images posted by a 16-year-old Albany High student’s public Instagram account used to intimidate and target the female students of color in his class. The student, who sued the school district for taking disciplinary action against him, claimed that his free speech rights entitled him to inflict pain on his fellow students in a way that interfered with their school activities. Under his perversion of the First Amendment, the school could take no action to address his actions that devastated the targeted students and the entire school community. The student, and others who engaged with the Instagram account, sued the school district for taking disciplinary action against them.
This week, a judge in the Northern District of California sent a clear message to these boys, and to schools across the country, granting summary judgment in favor of the northern California school district; finding that the hateful Instagram activity targeting female students of color was not protected from school discipline by the First Amendment. To the contrary, the Court concluded: “students have the right to be free of online posts that denigrate their race, ethnicity or physical appearance, or threaten violence. They have an equivalent right to enjoy an education in a civil, secure, and safe school environment.”
The Lawyers’ Committee for Civil Rights, with pro bono assistance from Jones Day, sought leave to file an amicus brief in this case to demonstrate the devastating effect hate speech and cyber-hate can have on its targets, who often suffer physically and emotionally. We wanted to highlight research that demonstrates that hate targeted at the intersection of two different forms of discrimination – on the basis of race and gender – is particularly pernicious and harmful. The brief argued that, in these instances, schools are not only able to step in and take action, but may have a duty to do so under federal civil rights laws. We filed this brief because as we see an increase in hate spread through online platforms, schools must recognize the harm that cyber-hate can have on their students and school communities and take action to ensure that all students can learn in a safe environment free from discrimination, intimidation, threats and harassment.
As a civil rights organization, we know that these issues are especially important for African American and other minority students who far too often are the targets of such hateful conduct. We also know that the First Amendment provides critical protections for many organizations that promote civil rights, and that the dialogue and debate the protections foster are critical to our democracy. One can, and must, firmly support the First Amendment, while at the same time recognizing that the kind of activity at stake in this case falls outside the ambit of that protection.
In addition to the important legal issues at stake, we wrote the brief because of the real human toll that these actions took on young women of color who sought to do nothing more than go to school free from harassment targeting them because of the color of their skin. At this time more than ever, we all must send a message to these young women, as well as to all of the students at their school and across the country, that free speech rights do not entitle people to deny students this fundamental right. In the midst of a rise in hate activity across the country, our schools must remain a safe place of equal opportunity for all.
