Instagram Discipline

This past week, the 6th Circuit released a ruling affirming a districts court holding that a school did not violate a student’s 1st Amendment Rights when they suspended them for comments made off-campus on a personal Instagram account. Kutchinski v. Freeland Community School District, 6th Circuit 2023.

H.K., a high school student at Freeland Community School District, created a fake Instagram account impersonating one of his teachers. The account quickly became “graphic and harassing”. H.K. subsequently gave the login credentials to two other students who continued the add content and tag other users.

The impersonated teacher, Steven Schmidt, contact the principal over the weekend to let him know he has reported the conduct and that the account wasn’t him. That following Monday, principal began investigating who was behind the page. By lunch, other students had convinced H.K. to delete the account, which he did. Subsequently, the principal determined the origins of the account and suspended H.K. and two other students for 5 days. Following a hearing, H.K.’s punishment was extended to 10 days.

Can H.K. be punished for other students post on the account? - YES 

H.K. argued that many of the harassing comments were made by other students. Such post include:

• A photo of a disabled student with the caption “glad this sicko is out of our school #ass[a]ult”

• A photo of Schmidt and his wife and child with the caption “just #gangbanged my wife with 4 other men in the back of an Arby’s #notmykid #14inches”

• A photo of Howson (an English teacher at the same school) with the caption “best sex in a Pet Smart #big #throbbing #14inches #raw”

• A photo of Anderson (a football coach at the school) with his cat with the caption “I could beat up @treyanderson and anyone else in the @elite_edge and then curb stomp his cat. #gains @peta”

The 6th Circuit pointed to rulings in the 4th, 9th and 1st Circuits in which those courts held students responsible for harmful speech if they affirmatively participated in such speech.

Relying on the 9th Circuits ruling where Chen, where the student in that case was disciplined for liking and commenting on Instagram post about other students that were highly racist”. The court in Chen ruled that such action indicated Chen “affirmatively participated in what ended up as abusive harassment targeted at particular student. Similarly, the 6th Circuit noted stated that “those who participate bear the responsibility”. In H.K. case, the court noted that H.K. gave the other students access to the account, joked with them about the post, accepted followers and therefore bears responsibility. 

Can H.K. be disciplined for off-campus social media post? - YES 

Following the Mahanoy ruling (see article here), the S.C. outlined four categories of speech that school may regulate. Those are;

1.     Indecent, offensively lewd or vulgar speech on school grounds or at an activity.

2.     At school event promoting illegal drug use.

3.     School speech if related to pedagogical concerns, and

4.     On-campus and “some” off-campus speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others” Mahonoy Area Sch. Dist. V. B.L. ex rel. Levy, 141 S. Ct. 2038, 2045 (2021).

According to the 6th Circuit, in order for the school to punish H.K., H.K. must have borne responsibility for the speech (see section above) and the speech would “substantially disrupt” classwork. The Court noted while “substantial disruption” is a “demanding standard”, it also pointed out that such disruption does not have to actually occur. Lowery v. Euverard, 497 F.3d 584 (6th Cir. 2007). Instead, the court noted the school must “reasonably forecast that the post on Instagram would “cause a material and substantial disruption to schoolwork and school discipline. Barr v. Lafon, 538 F.3d 544 (6th Cir. 2008).

Following those guidelines the court noted, “impersonating a Freeland teacher and directed sexual and violent post at three Freeland teachers and a student would substantially disrupt normal school proceedings.” The court also pointed out that the affected teachers were seen crying while other teachers reported disruptions to their classes as students were concentrating on the post. 

TAKE HOME POINTS

1.     Students can be punished for off-campus social media post, likes and comments.

a.     They must have materially participated in the speech.

b.     The speech must not be otherwise protected speech.

2.     The Tinker “material disruption” standard still stands but punishment can be provided without a disruption only if such a disruption is “reasonably forecasted”.

3.     There is no such thing as a “fake or anonymous” account and kids can’t keep a secret.