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Judge issues ruling on Albany High online posting lawsuits

East Bay Times – by Damin Esper

ALBANY –– A United States District Court judge in San Francisco issued a divided ruling this week on a portion of a case involving an Instagram account created by a former Albany High student that had several racist memes posted on it.

The lawsuits were filed on behalf of 10 students disciplined after the discovery of the account in March. The Albany Unified School District and several employees as well as district officials and an AUSD board member were the defendants.  

On Nov. 29, Judge James Donato granted a summary judgment in favor of the defendants regarding how the AUSD disciplined the creator of the account and students who had “liked” and commented on some of the posts.

He ruled against the AUSD regarding four students who liked or commented on posts that didn’t target specific students and one who never liked or commented on anything.

Donato only considered the First Amendment questions and related state law claims raised by the lawsuits in this ruling. The parties agreed to address those questions on summary judgment as they are central to the cases.

It’s not clear when other claims by the plaintiffs will be considered.

The AUSD had no comment, issuing a news release that simply restated the results of the ruling.

Darryl Yorkey, who represented several of the plaintiffs, said he will be filing an amended complaint in the next week.

“I don’t agree with the judge’s decision,” Yorkey said. “It was definitely unfavorable to my clients.”

Alan Beck, who also represented multiple plaintiffs, said, “I am pleased with the result for my clients that Judge Donato ruled in favor of. For the ones whom he ruled against, this is simply one ruling in a larger case and my other clients’ cases will continue.”

An appeal is possible. Normally, a party to a lawsuit has 30 days to file an appeal after a final ruling. The plaintiffs argued that however vile the posts were, they were protected as free speech and so was “liking” and commenting on them.

Also, because the account was allegedly created off school property, the actions did not constitute “school speech,” which covers when a school can restrict free speech rights –– generally speech that disrupts classwork, involves “substantial disorder,” or invades the rights of others, under Tinker v. Des Moines Independent County School District (1969).

“Without question, the original posts and verbal comments are within the scope of the First Amendment,” Donato wrote.

However, Donato wrote that the posts, likes and comments satisfied several legal tests to qualify as school speech “potentially subject to greater regulation by school authorities.” The fact that the posts targeted Albany High students and included pictures that had been taken on campus weighed heavily in the ruling.

Donato wrote that the targeted students “have the right to be free of online posts that denigrate their race, ethnicity or physical appearance, or threaten violence.”

That finding meant that most of the plaintiffs were properly disciplined. The creator of the account was expelled in June. One student was up for expulsion proceedings but those were stayed via injunction.

He and three other students who had liked or commented on posts targeting specific students were suspended properly. “There is no doubt these plaintiffs meaningfully contributed to the disruptions at AHS,” Donato wrote.

He had a different opinion on four other plaintiffs because the record doesn’t show that they “either approved or adopted any content targeting specific individuals at AHS.”

One student was originally suspended for two days and had his suspension extended to five days after he sent a screenshot of another conversation to one of the victims upon her request. Donato ruled that the initial suspension was justified but that there was no justification for the additional suspension.

Donato denied a request to delete the suspensions from the students’ permanent records.

The account was created in November 2016, and was discovered the following March. At least nine male students had access to it and 10 students were targeted by it, mostly African-American females.

When some of the students returned to school after serving their suspensions, a “restorative justice” session was held at the same time as a rally protesting racism. Some of the plaintiffs ended up walking a gauntlet of angry students, during which they were allegedly screamed at, and two were allegedly assaulted, leaving one of the plaintiffs with a broken nose.


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