KEVIN CHEN V. ALBANY UNIFIED SCHOOL DISTRICT

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN CHEN, through his No. 20-16540
Guardian Kai Dong Chen,
D.C. No. 3:17-cv-
Plaintiff-Appellant, 02478-JD
and
OPINION
PHILIP SHEN, through his
Guardian John Shen; NIMA
KORMI, through his Guardian
Ellie Kormi; MICHAEL BALES,
through his Guardian Patricia
Mingucci,
Plaintiffs,
v.
ALBANY UNIFIED SCHOOL
DISTRICT; VALERIE
WILLIAMS, in her personal and
official capacities as
Superintendent of the Albany
Unified School District; JEFF
ANDERSON, in his personal and
official capacities as Principal of
Albany High School; MELISA
PFOHL, in her personal and
official capacities as Assistant
2 CHEN V. ALBANY SCHOOL DISTRICT
Principal of Albany High School,
Defendants-Appellees,
and
ALBANY HIGH SCHOOL,
Defendant.
CEDRIC EPPLE, No. 20-16541
Plaintiff-Appellant, D.C. No. 3:17-cv-
03657-JD
v.
ALBANY UNIFIED SCHOOL
DISTRICT; ALBANY HIGH
SCHOOL; VALERIE
WILLIAMS, in her personal and
official capacities as
Superintendent of the Albany
Unified School District; JEFF
ANDERSON, in his personal and
official capacities as Principal of
Albany High School; MELISA
PFOHL, in her personal and
official capacities as Assistant
Principal of Albany High School;
CHARLES BLANCHARD;
JACOB CLARK; KIM
TRUTANE; ALBANY UNIFIED
CHEN V. ALBANY SCHOOL DISTRICT 3
SCHOOL DISTRICT BOARD
OF EDUCATION,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
James Donato, District Judge, Presiding
Argued and Submitted December 6, 2021
San Francisco, California
Filed December 27, 2022
Before: Ronald M. Gould and Daniel P. Collins, Circuit
Judges, and Roslyn O. Silver, * District Judge.
Opinion by Judge Collins;
Concurrence by Judge Gould
*
The Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.
4 CHEN V. ALBANY SCHOOL DISTRICT
SUMMARY **
First Amendment / Free Speech
The panel affirmed the district court’s judgment
rejecting First Amendment claims brought by students
against Albany High School and school officials after the
students were disciplined for assertedly “private” off-
campus social media posts that amounted to severe bullying
or harassment targeting particular classmates.
The panel held that, under the circumstances of the
case, the school properly disciplined two of the involved
students for bullying. Students Kevin Chen and Cedric
Epple claimed that defendants violated their free speech
rights under the First Amendment, the California
Constitution, and the California Education Code. They
argued that their speech was not susceptible to regulation
because they engaged in it off campus, and therefore
defendants could not constitutionally discipline them.
First, the panel discussed the framework that the
Supreme Court has established for determining whether
school districts can discipline students for on-campus
speech. Under that framework, students do not have a First
Amendment right to target specific classmates in an
elementary or high school setting with vulgar or abusive
language. As a result, there was no question that Epple and
Chen could be disciplined for their speech had it occurred
on campus. The posts in the social media account include
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CHEN V. ALBANY SCHOOL DISTRICT 5
vicious invective that was targeted at specific individuals
and that employed deeply offensive and insulting words
and images that, as used here, contribute nothing to the
“marketplace of ideas.” Moreover, some of the posts used
violent imagery that, even if subjectively intended only as
immature attempts at malign comedy, would reasonably be
viewed as alarming, both to the students targeted in such
violently-themed posts and to the school community more
generally. Nothing in the First Amendment would even
remotely require schools to tolerate such behavior or
speech that occurred under its auspices.
Second, the panel considered whether Epple and Chen
were insulated from discipline because their speech
occurred off campus. The panel concluded, taking into
account the Supreme Court’s recent decision in Mahoney
Area Sch. Dist. v. B.L. ex rel. Levy, 141 S. Ct. 2038 (2021),
that the speech bore a sufficient nexus to Albany High
School and its students to be susceptible to regulation by
the school. Specifically, the panel applied the sufficient-
nexus test, outlined in McNeil v. Sherwood Sch. Dist. 88J,
918 F.3d 700, 707 (9th Cir. 2019), to the speech at issue
here, keeping in mind the additional considerations
identified in Mahoney. Under McNeil, Epple’s subjective
intention to keep the account private was not controlling.
The panel held that given the ease with which electronic
communications may be copied or shown to other persons,
it was plainly foreseeable that Epple’s posts would
ultimately hit their targets, with resulting significant
impacts to those individual students and to the school as a
whole. The remaining McNeil factors strongly supported
the school’s assertion of disciplinary authority. Although
Chen’s involvement in the account was substantially more
limited that Epple’s, the panel concluded that he was
6 CHEN V. ALBANY SCHOOL DISTRICT
nonetheless properly subject to discipline as well. Chen
contributed to the account multiple times in ways that were
directly related to Albany High School. As with Epple,
Chen’s conduct had a sufficient nexus to Albany High
School and, under Tinker v. Des Moines Independent
Community School District, 393 U.S. 503 (1969), was
properly subject to discipline. Accordingly, the panel
rejected Epple’s and Chen’s claims that their First
Amendment rights were violated by defendants’
disciplinary actions towards them.
Finally, the panel concluded that the discipline did not
independently violate the California Constitution or the
California Education Code. Because California follows
federal law for free expression claims arising in a school
setting, Epple’s and Chen’s reliance on the California
Constitution failed for the same reasons discussed above.
The panel held that Epple’s and Chen’s reliance of
California Education Code §§ 48950(a) and 48907
similarly failed, and it did not preclude defendants from
disciplining Epple and Chen.
Epple claimed that he was deprived of his due process
right to a fair hearing before an impartial tribunal because a
member of the school board who voted to expel him was
biased against him. The district court dismissed this claim
on the ground that Epple had failed to exhaust judicial
remedies. Even if Epple’s judicial remedies were
exhausted, the panel affirmed the dismissal of Epple’s due
process claim on the separate ground that a California state
court’s decision rejecting Epple’s claims of bias had
preclusive effect here.
Judge Gould concurred. He wrote separately, in light
of the continued disturbing prevalence of hate speech, to
CHEN V. ALBANY SCHOOL DISTRICT 7
underscore that the First Amendment and Supreme Court
precedent do not require courts to always strike down a
government entity’s attempts to prevent harm to their
citizens—especially in the context of hateful speech at
schools harming children.
COUNSEL
Alan Alexander Beck (argued), Law Offices of Alan Beck,
San Diego, California; Darryl D. Yorkey, Law Offices of
Darryl Yorkey, Berkeley, California; for Plaintiffs-
Appellant.
Seth L. Gordon (argued), Katherine A. Alberts, and Louis
A. Leone, Leone Alberts & Duus APC, Concord,
California, for Defendants-Appellees.
OPINION
COLLINS, Circuit Judge:
This case concerns a public high school’s ability under
the First Amendment to discipline students for assertedly
“private” off-campus social media posts that, once they
predictably made their way on to campus, amounted to
“severe bullying or harassment targeting particular”
classmates. Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy,
141 S. Ct. 2038, 2045 (2021). We hold that, under the
circumstances of this case, the school properly disciplined
8 CHEN V. ALBANY SCHOOL DISTRICT
two of the involved students for bullying. We therefore
affirm the district court’s judgment rejecting the students’
First Amendment claims against the high school and others.
I
A
Because this appeal arises from a grant of summary
judgment against the student Plaintiffs, “we must credit
[their] evidence as true and draw all reasonable inferences
in [their] favor.” Demarest v. City of Vallejo, 44 F.4th
1209, 1213 (9th Cir. 2022). For purposes of these appeals,
we therefore take the following facts as true.
During the 2016–2017 school year, Plaintiffs-
Appellants Cedric Epple and Kevin Chen were students at
Albany High School (“AHS”), a public high school in
Albany, California. In November 2016, at the suggestion
of a friend, Epple created a private Instagram account to
share comments “privately with my small group of
friends.” Unlike Epple’s “‘main’ Instagram account,”
which he used to “share images that are appropriate for a
wide audience,” he intended this new account, which
operated under the username “yungcavage,” to be “a
private forum where [he] could share funny memes,
images, and comments with [his] close friends that [they]
thought were funny, but which other people might not find
funny or appropriate.” Epple attempted to keep the account
“very private,” rejecting several requests to follow the
account and only approving requests to “follow” the
account from “close friends” that he thought he “could trust
to keep the material private.” Over the ensuing months,
Epple only allowed about “13 people to follow the
account,” including Chen. He “never intended any person
outside [his] close group of friends to see the images [he]
CHEN V. ALBANY SCHOOL DISTRICT 9
posted to the account.” Chen “followed” the account using
the Instagram username “kkkevinkkkkk.” Chen likewise
understood that Epple’s second Instagram account was to
“be a private forum (by invite only), exclusive to [their]
friends, and a place where [they] could share sarcasm,
jokes, funny images, and other banter privately.” Not all of
the persons who eventually followed the account knew who
the owner of the account was.
Between November 2016 and March 2017, Epple used
the account to make a number of cruelly insulting posts
about various AHS students. These ranged from immature
posts making fun of a student’s braces, glasses, or weight to
much more disturbing posts that targeted vicious invective
with racist and violent themes against specific Black
classmates. For example, in early February 2017, Epple
uploaded a photograph in which a Black member of the
AHS girls’ basketball team was standing next to the team
coach, who was also Black, and Epple drew nooses around
both their necks and added the caption “twinning is
winning.” In another post, he combined (1) a screen shot
of a particular Black student’s Instagram post in which she
stated “I wanna go back to the old way” with (2) the
statement “Do you really tho?”, accompanied by a
historical drawing that appears to depict a slave master
paddling a naked Black man who is strung up by rope
around his hands. On February 11, 2017, he posted a
screenshot of texts in which he and a Black classmate were
arguing, and he added the caption “Holy shit I’m on the
edge of bringing my rope to school on Monday.” Other
posts, although not referencing specific students, contained
images either depicting, or making light of, Ku Klux Klan
violence against Black people. One post included what
appears to be a historical photograph of a lynched man still
10 CHEN V. ALBANY SCHOOL DISTRICT
hanging from a tree; another depicts a Klan member in a
white hood; and a third combines the caption “Ku klux
starter pack” with pictures of a noose, a white hood, a
burning torch, and a Black doll.
Epple also created several posts that, while omitting
references to violence, still aimed highly offensive racist
insults at identifiable Black classmates. In one, he
uploaded an image of a Black student sitting in class that
was captioned with the statement “The gorilla exhibit is
nice today.” In another post, Epple included side-by-side
images of one of his Black classmates and a gorilla. Chen
added a comment on that post stating, “Its too good,” but
one of the private account’s other followers responded with
a series of comments saying: “Hey not funny,” “Fuck you,”
and “Delete this.” Chen then responded to these comments
with a further comment stating, “no fuck YOU you dirty
zookeeping son of a bitch.” Two of Epple’s other posts
feature the back of the head of two different Black students
while each was sitting in class, with the first including his
comment “Fucking nappy ass piece of shit” and the second
saying “Fuck you.” After a Black classmate asked to join
the account, Epple made a post asking his followers, “Who
the fuck is this nigger.” Chen responded by “liking” that
post.
In addition to the comments mentioned earlier, Chen
contributed to the Instagram account on several other
occasions. For example, he took a picture of a Black
student during class, without her permission, and sent it by
Snapchat with the caption, “She’s eating a fucking carrot”;
Epple then posted that captioned picture to the Instagram
account. In comments on another post, Chen called a non-
Black student who followed the account a “nigger” after
the student guessed (incorrectly) that Chen was the owner
CHEN V. ALBANY SCHOOL DISTRICT 11
of the account.
Although the “yungcavage” account was intended to be
private, knowledge of its contents eventually spread to the
school. During the weekend of March 18–19, 2017, one of
the account’s followers showed multiple photos from that
account to the girls’ basketball player who had been
depicted with a noose. On Monday, March 20, that student,
in turn, shared what she had learned with several other
students who had been targeted by the account’s posts.
That same day, one of the followers of the account was
asked to lend his phone to a student who claimed to need to
call her mother, and while this student had the phone, she
took it into the restroom, where she and another student
took pictures of some of the contents of the yungcavage
account. Those photographs were then shared with other
students.
As knowledge of the account rapidly spread, a group of
about 10 students gathered at the school, several of whom
were upset, yelling, or crying. Although the next class
period had started, the students “were all too upset to go to
class.” The school’s Principal, Jeff Anderson, asked them
to come to the conference room adjacent to his office,
where they were joined by two of the school’s Assistant
Principals, Melisa Pfohl and Tami Benau. Benau stated
that she had “never seen a group of students as upset as
these girls were.” The school administrators summoned the
school’s counselors and mental health staff to join them,
and around the same time, some of the students’ parents
(who had presumably been contacted by their children)
began to arrive.
After being shown some of the account’s posts, Benau
concluded that the posts depicting lynching and nooses
12 CHEN V. ALBANY SCHOOL DISTRICT
could be construed as threats of violence, and she therefore
called the police. The school administrators arranged for
the students to provide written statements, and Benau and
the police also interviewed some of the students. The next
day, March 21, Anderson, Pfohl, and two police officers
met with each of the three students who had been identified
as being responsible for the account (Epple, Chen, and one
other), together with at least one of the parents of each
respective student. Epple “took full responsibility for
creating all the images and posts.” Chen admitted that he
followed the Instagram account and that he had “liked” and
commented on some of the posts. All three students were
suspended for five days. A few days later, Anderson
separately told Epple and Chen that he was going to
recommend that they be expelled and that their suspensions
would continue pending those expulsion proceedings. In
later explaining the grounds for the suspensions, Anderson
stated that posts on the account constituted “harassment and
bullying based on race and gender” and that he had an
obligation under California and federal law “to respond to
peer to peer harassment that could cause a hostile
environment.”
Anderson called a faculty meeting after school on
March 21 to discuss the incident. The teachers complained
that the meeting should have been held the day before,
because a “majority” of the students knew about the matter
and wanted to talk about it in class, leaving the teachers to
deal “with the situation all day without any official
information from the school.” As Anderson later explained
it, the teachers said that “a lot of students were upset by
what they had heard about the account and wanted to talk
about it in class, which disrupted [the teachers’] plans for
the class.”
CHEN V. ALBANY SCHOOL DISTRICT 13
The record contains additional undisputed evidence
concerning the effect that knowledge of the Instagram
account had on students at AHS. On March 20, the student
who had been targeted in the post containing a drawing of a
slave being abused left school early because she “was too
upset to return to class.” She also reported being afraid to
go to one of her classes because the students in that class
included one who had favorably commented on a post that
included a photograph of a hooded Klansman. Another
Black student stated that she missed multiple days of
school after learning that a post made fun of her “Afro”
hair style and her physical appearance, and her parents
eventually withdrew her from AHS. Other students
targeted by the posts reported that they felt “devastated,”
“scared,” and “bullied,” and that their grades suffered.
According to Pfohl, “[t]he AHS school counselors and
mental health staff were inundated with students needing
help to handle their feelings of anger, sadness, betrayal and
frustration about the racist posts and comments in the
Instagram account.” Albany Unified School District
(“AUSD”) Superintendent Valerie Williams described the
incident’s impact:
From my meetings with the students that
were shown in the postings and
conversations with several parents of the
students, the impact has been significant and
ongoing. Parents stated they are afraid for
their children’s safety on campus and off
campus. They stated that their children are
traumatized and cannot study, and that they
are afraid to be in the same class or on the
same campus as the students who posted.
Several of the students’ grades dropped
14 CHEN V. ALBANY SCHOOL DISTRICT
because they were unable to attend school or
some classes, and they are now worried
about failing their classes. Some students
could not return to school for several days.
Most of the students say they are hurt, angry
and feel betrayed. One parent reported to
me that his daughter has lost sleep, that
sometimes she can talk about the incident
and sometimes she is too upset to talk at all
about the postings.
A group of school parents organized a rally on March
26, 2017 “to bring people together and start the healing
process.” AUSD Board of Education (“AUSD Board”)
member Kim Trutane posted on Facebook about the rally,
saying, “[H]as this been conceived in coordination with the
Black/African American Parents Engagement Group?” and
“So glad that you are joining forces! I am definitely going
. . . . Looking forward to sending a strong message of
support . . . that we will not tolerate racism, Albany is for
everyone!” One local publication that covered the rally
published a picture of Trutane at the event, holding a sign
saying, “WE are DIVERSE & GREAT.”
Another student who had followed the account was
suspended for only five days and returned to school on
March 30. Later that afternoon, he attended, together with
other student followers of the account, a “restorative justice
session” organized by AHS, using the services of a local
community organization. More than 100 protestors
gathered outside the session, which led some of the
participants to fear for their safety. After waiting several
hours while the demonstration continued, the student
CHEN V. ALBANY SCHOOL DISTRICT 15
followers of the account who were at the meeting decided
to leave the school. On their way out of the building, a
student demonstrator punched two of them in the face,
breaking the nose of one of them.
Chen’s and Epple’s expulsion hearings before the
AUSD Board were scheduled for June 1, 2017. However,
on May 1, Chen and three other students filed a federal suit
against AUSD, and on May 26, the district court issued a
temporary restraining order enjoining his expulsion
hearing. Epple’s expulsion hearing went forward on June 1
was concluded on June 20. On June 22, three members of
the AUSD Board, including Trutane, voted in favor of
expulsion, and two members abstained.
Epple appealed his expulsion to the Alameda County
Board of Education (“ACBE”), arguing, inter alia, that he
was denied a fair hearing because Trutane was biased
against him. According to Epple, Trutane should have
recused herself from the AUSD Board’s expulsion hearing
because she participated in a demonstration and other
advocacy against Epple and his account. The ACBE
disagreed and upheld Epple’s expulsion in September 2017.
Epple filed a petition for a writ of mandate in California
state court. The state court denied his petition on October
1, 2020, after finding that ACBE applied the correct legal
standard and that the record did not demonstrate an
unacceptable probability that Trutane was biased. 1
1
We grant Epple’s motion to take judicial notice of the state court’s
order denying his petition.
16 CHEN V. ALBANY SCHOOL DISTRICT
B
Four days after the AUSD Board voted to expel him,
Epple filed a federal action against AUSD, the AUSD
Board, the three AUSD Board members who had voted to
expel him, the AUSD Superintendent (Williams), AHS,
Principal Anderson, and Assistant Principal Pfohl. Epple
alleged that Defendants had violated his free speech rights
under the First Amendment and California law, and he also
asserted that all Defendants except Williams, Anderson,
and Pfohl had violated his due process rights in connection
with his expulsion hearing. As noted above, Chen and
three other students had already filed a similar action
several weeks earlier. Chen and those students named as
defendants AUSD, AHS, Superintendent Williams,
Principal Anderson, and Assistant Principal Pfohl. 2 In that
complaint, Chen alleged similar free speech claims against
all Defendants, and he also contended that all Defendants
had violated his due process rights in connection with his
suspension. Two other lawsuits were filed and ultimately
joined by a total of five other students who had been
disciplined for their involvement with the Instagram
account. See John Doe v. Albany Unified Sch. Dist., 3:17-
cv-02767-JD (N.D. Cal. filed May 12, 2017); John Doe v.
Albany Unified Sch. Dist., 3:17-cv-03418-JD (N.D. Cal.
filed June 13, 2017). The district court deemed all of these
cases related. All plaintiffs filed motions for summary
judgment on their respective free speech claims, and
Defendants filed cross-motions for full or partial summary
judgment.
2
Chen and his co-plaintiffs also initially asserted claims against an
AHS teacher, but those claims were promptly voluntarily dismissed.
CHEN V. ALBANY SCHOOL DISTRICT 17
On November 29, 2017, the district court held in
Defendants’ favor with respect to Epple’s, Chen’s, and four
other plaintiffs’ free speech claims. The district court
reasoned that under C.R. v. Eugene School District 4J, 835
F.3d 1142 (9th Cir. 2016), these six plaintiffs’ speech was
susceptible to regulation by the school because (1) the
speech had a sufficient nexus to the school; and (2) it was
reasonably foreseeable that the speech would reach the
school and create a risk of a substantial disruption. The
district court then found that under the Supreme Court’s
decision in Tinker v. Des Moines Independent Community
School District, 393 U.S. 503 (1969), these six plaintiffs
were properly disciplined because their speech caused or
contributed to a substantial disruption at AHS and “clearly
interfered with ‘the rights of other students to be secure and
to be let alone’” (quoting Tinker, 393 U.S. at 508). The
court held that the four remaining plaintiffs—none of
whom are involved in this appeal—could not be disciplined
under Tinker because they had not “create[d] a substantial
risk of disruption,” nor had they “interfered with the rights
of other students.”
By April 2018, the only plaintiffs whose claims
remained at issue were Epple, Chen, and one of Chen’s co-
plaintiffs. In August 2018, the district court dismissed
Epple’s and Chen’s due process claims without prejudice,
holding that, because they had not yet filed a petition for
writ of mandate in California state court challenging the
relevant administrative actions, they had failed to exhaust
still-available judicial remedies. 3 See Doe v. Regents of the
3
As noted earlier, after the district court issued its order, Epple filed a
petition for writ of mandate in California state court. See supra at 15.
18 CHEN V. ALBANY SCHOOL DISTRICT
Univ. of Cal., 891 F.3d 1147, 1154–55 (9th Cir. 2018)
(holding that, in order to attempt to avoid the preclusive
effect of a California state administrative decision, a party
“must exhaust judicial remedies” by filing a petition for
writ of mandate). Due to delays associated with
proceedings concerning the remaining co-defendant, the
district court did not enter final judgment against Epple and
Chen until July 27, 2020. Epple and Chen timely appealed.
The district court had original jurisdiction pursuant to
28 U.S.C. §§ 1331, 1343, and 1367 and we have appellate
jurisdiction under 28 U.S.C. § 1291. We review de novo
both the district court’s grant of summary judgment
regarding Epple’s and Chen’s free speech claims, LaVine v.
Blaine Sch. Dist., 257 F.3d 981, 987 (9th Cir. 2001), and its
dismissal, under Federal Rule of Civil Procedure 12(b)(6),
of Epple’s due process claim. Chandler v. McMinnville
Sch. Dist., 978 F.2d 524, 526 (9th Cir. 1992).
II
Epple and Chen claim that Defendants violated their
free speech rights under the First Amendment, the
California Constitution, and the California Education Code.
They argue that their speech was not susceptible to
regulation because they engaged in it off campus, and
therefore Defendants could not constitutionally discipline
them. We affirm the district court, and our analysis
proceeds in three steps. First, we discuss the framework
that the Supreme Court has established for determining
whether school districts can discipline students for on-
campus speech. Under this framework, there is no question
that Epple and Chen could be disciplined for their speech
had it occurred on campus. Second, we consider whether
Epple and Chen are insulated from discipline because their
CHEN V. ALBANY SCHOOL DISTRICT 19
speech occurred off campus. Taking into account the
Supreme Court’s recent decision in Mahanoy, we conclude
that the speech bore a sufficient nexus to AHS and its
students to be susceptible to regulation by the school.
Finally, we conclude that the discipline did not
independently violate the California Constitution or the
California Education Code.
A
“The First Amendment guarantees wide freedom in
matters of adult public discourse,” but that does not mean
that “the same latitude must be permitted to children in a
public school.” Bethel Sch. Dist. No. 403 v. Fraser, 478
U.S. 675, 682 (1986). The Supreme Court has made clear
that “the First Amendment rights of students in the public
schools ‘are not automatically coextensive with the rights
of adults in other settings,’ and must be ‘applied in light of
the special characteristics of the school environment.’”
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266
(1988) (citations omitted). “[A] school need not tolerate
student speech that is inconsistent with its basic educational
mission.” LaVine, 257 F.3d at 988 (citing Kuhlmeier, 484
U.S. at 266). “In a math class, for example, the teacher can
insist that students talk about math, not some other subject.
In addition, when a teacher asks a question, the teacher
must have the authority to insist that the student respond to
that question and not some other question, and a teacher
must also have the authority to speak without interruption
and to demand that students refrain from interrupting one
another.” Mahanoy, 141 S. Ct. at 2050 (Alito, J.,
concurring) (citation omitted).
More generally, the conduct of students in the school
setting, including their speech, may be restricted if either
20 CHEN V. ALBANY SCHOOL DISTRICT
[1] it “might reasonably [lead] school authorities to forecast
substantial disruption of or material interference with
school activities” or [2] it “collides ‘with the rights of other
students to be secure and to be let alone.’” Wynar v.
Douglas Cnty. Sch. Dist., 728 F.3d 1062, 1070 (9th Cir.
2013) (quoting Tinker, 393 U.S. at 508, 514). The
Supreme Court recently clarified that the “standard” for
showing a risk of “substantial disruption” is a “demanding”
one that requires “something more than a mere desire to
avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint.” Mahanoy, 141 S. Ct.
at 2047–48 (quoting Tinker, 393 U.S. at 509). And with
respect to the second alternative, we have recognized that
“[t]he precise scope of Tinker’s interference with the rights
of others language is unclear,” but the speech must be more
than “merely offensive to some listener.” C.R., 835 F.3d at
1152 (citations omitted).
Moreover, even outside the school setting, “[t]he First
Amendment rights of minors are not ‘co-extensive with
those of adults.’” Erznoznik v. City of Jacksonville, 422
U.S. 205, 214 n.11 (1975) (citation omitted). For example,
the “traditional categorical exceptions” from the First
Amendment that the Court has recognized, such as
obscenity and “fighting words,” see R.A.V. v. City of St.
Paul, 505 U.S. 377, 383 (1992), may have a broader sweep
in the context of minors. See, e.g., Ginsberg v. New York,
390 U.S. 629, 636–43 (1968) (upholding a ban on the sale
to minors of sexually oriented material deemed to be
obscene as to minors, even though the material was entitled
to First Amendment protection with respect to adults).
That principle acquires special force when applied in the
school context, which, as noted, involves “special
characteristics” that may justify additional restrictions.
CHEN V. ALBANY SCHOOL DISTRICT 21
Kuhlmeier, 484 U.S. at 266. Thus, whatever the contours
of the fighting words doctrine in the context of
confrontations among adults in a public forum, cf. R.A.V.,
505 U.S. at 414 (White, J., concurring in the judgment)
(rejecting, in the context of a facial challenge to an
ordinance, a conception of the “fighting words” doctrine
that would deem expression to be unprotected merely
because it “causes hurt feelings, offense, or resentment”),
students do not have a First Amendment right to “target”
specific classmates in an elementary or high school setting
“with vulgar or abusive language.” See Mahanoy, 141
S. Ct. at 2047; see also id. at 2052 (Alito, J., concurring)
(“[A] school must have the authority to protect everyone on
its premises, and therefore schools must be able to prohibit
threatening and harassing speech.”); cf. Fraser, 478 U.S. at
682 (“It does not follow . . . that simply because the use of
an offensive form of expression may not be prohibited to
adults . . . , the same latitude must be permitted to children
in a public school.”). Without limiting “any political
viewpoint” or other protected content, schools may insist
on “civil discourse” in the school context, thereby teaching
and reinforcing “the shared values of a civilized social
order.” Fraser, 478 U.S. at 683, 685; see also C.R., 835
F.3d at 1152 (distinguishing between speech that “is merely
offensive to some listener” and “sexual harassment”
targeted at particular students).
Against this backdrop, we readily conclude that the
First Amendment would not prevent a school from
punishing the sort of speech at issue here had it “occur[red]
under [the school’s] supervision.” Mahanoy, 141 S. Ct. at
2045. The posts in the yungcavage account include vicious
invective that was targeted at specific individuals and that
employed deeply offensive and insulting words and images
22 CHEN V. ALBANY SCHOOL DISTRICT
that, as used here, contribute nothing to the “marketplace of
ideas.” See id. at 2046; cf. Monteiro v. Tempe Union High
Sch. Dist., 158 F.3d 1022, 1031–32 (9th Cir. 1998)
(rejecting claim that school district violated student’s equal
protection rights by assigning Huckleberry Finn, with its
use of racial epithets, as mandatory reading). Moreover,
some of the posts used violent imagery that, even if
subjectively intended only as immature attempts at malign
comedy, would reasonably be viewed as alarming, both to
the students targeted in such violently-themed posts and to
the school community more generally. In particular,
combining photographs of specific students with images
drawing upon the horrific legacy of terroristic violence
executed by the Klan against Black people would
understandably be deeply upsetting and intimidating to the
targeted students. Cf. Virginia v. Black, 538 U.S. 343,
352–57 (2003) (recounting the Klan’s long history of
terroristic violence).
Had these posts been printed on flyers that were
distributed furtively by students on school grounds but then
discovered by school authorities, the “collision with the
rights of [the targeted] students to be secure and to be let
alone” would be obvious. Tinker, 393 U.S. at 508. As we
explained in C.R., severe targeted harassment of fellow
students based on their physical characteristics—there,
sexual harassment that “positions the target as a sexual
object” and here, racial harassment that vilifies people
based on their race—threatens the targeted students’ “sense
of physical, as well as emotional and psychological,
security.” 835 F.3d at 1152; see also Monteiro, 158 F.3d at
1033 (“[R]acist attacks need not be directed at the
complainant in order to create a hostile educational
environment.”). And the likelihood of “substantial
CHEN V. ALBANY SCHOOL DISTRICT 23
disruption of or material interference with school activities”
from such malicious abuse aimed at particular students is
equally obvious and, as we explain below, amply
demonstrated in the record here. Tinker, 393 U.S. at 514;
see infra at 28–29. Even assuming arguendo that the posts
at issue did not amount to unprotected true threats or
fighting words, nothing in the First Amendment would
even remotely require schools to tolerate such behavior or
speech that occurs under its auspices. Mahanoy, 141 S. Ct.
at 2045.
B
The central question here is instead whether the
assertedly off-campus nature of the speech places it outside
of the school’s authority to regulate or to discipline.
Although Tinker involved “only a school’s ability to
regulate students’ on-campus speech,” C.R., 835 F.3d at
1149, we have held that students’ “off-campus speech is
not necessarily beyond the reach of a school district’s
regulatory authority.” McNeil v. Sherwood Sch. Dist. 88J,
918 F.3d 700, 706 (9th Cir. 2019). The contours of such
authority to regulate off-campus speech were recently
considered by the Supreme Court in Mahanoy, and so we
begin by reviewing that decision and then considering its
impact on our caselaw addressing school authority over off-
campus speech.
1
In Mahanoy, a public high school student (“B.L.”) who
was not selected for the school varsity cheerleading team
reacted by posting to Snapchat an image, which would be
visible to her approximately 250 “friends” for 24 hours,
containing the caption, “Fuck school fuck softball fuck
cheer fuck everything.” 141 S. Ct. at 2043. She posted the
24 CHEN V. ALBANY SCHOOL DISTRICT
image on a weekend while she was off campus. Id. The
school discovered the post and suspended the student from
the junior varsity cheerleading squad. Id. The student
sued, and the Third Circuit held that schools generally may
not discipline students for engaging in speech that occurs
off-campus. Id. at 2043–44.
The Supreme Court rejected the Third Circuit’s
categorical rule that “the special characteristics that give
schools additional license to regulate student speech always
disappear when a school regulates speech that takes place
off campus.” Mahanoy, 141 S. Ct. at 2045. The Court held
that public schools may regulate some off-campus student
speech, but it made clear that public schools have
diminished authority to regulate off-campus speech as
opposed to on-campus speech. In so holding, the Court
refused to “set forth a broad, highly general First
Amendment rule stating just what counts as ‘off campus’
speech and whether or how ordinary First Amendment
standards must give way off campus to a school’s special
need to prevent, e.g., substantial disruption of learning-
related activities or the protection of those who make up a
school community.” Id. Instead, the Court identified three
features of off-campus speech that “diminish the strength of
the unique educational characteristics that might call for
special First Amendment leeway” in evaluating a school’s
actions. Id. at 2046. First, because “off-campus speech
will normally fall within the zone of parental, rather than
school-related, responsibility,” a school will “rarely” be
able to invoke the “doctrine of in loco parentis”—i.e., that
the school “stand[s] in the place of students’ parents”—in
attempting to regulate such speech. Id. Second,
recognizing broad authority in schools over off-campus
speech would give them authority over “all the speech a
CHEN V. ALBANY SCHOOL DISTRICT 25
student utters during the full 24-hour day,” which would
threaten students’ ability to “engage in that kind of speech
at all,” including potentially “political or religious speech
that occurs outside school or a school program or activity.”
Id. Third, schools have both an interest in protecting and
an obligation to protect “the ‘marketplace of ideas,’” which
“must include the protection of unpopular ideas,” and that
important interest would be threatened by excessive school
authority over off-campus speech. Id.
Applying these considerations to the school’s
punishment of B.L.’s speech, the Court held that “the
school violated B. L.’s First Amendment rights.”
Mahanoy, 141 S. Ct. at 2048. In reaching this conclusion,
the Court emphasized that B.L.’s “posts appeared outside
of school hours from a location outside the school”; that
she “did not identify the school in her posts or target any
member of the school community with vulgar or abusive
language”; and that she “transmitted her speech through a
personal cellphone, to an audience consisting of her private
circle of Snapchat friends.” Id. at 2047. Given these facts,
“B.L. spoke under circumstances where the school did not
stand in loco parentis,” and she was communicating to her
friends, on her own time, a protected message of “irritation
with, and criticism of, the school and cheerleading
communities.” Id. The Court acknowledged that B.L.’s
off-campus actions “risk[ed] transmission [of the posts] to
the school itself,” id., but it concluded that the school had
failed to present evidence establishing “the sort of
‘substantial disruption’ of a school activity or a threatened
harm to the rights of others that might justify the school’s
action.” Id. (citing Tinker, 393 U.S. at 514).
26 CHEN V. ALBANY SCHOOL DISTRICT
2
Although the Supreme Court in Mahanoy declined to
articulate “a broad, highly general First Amendment rule
stating just what counts as ‘off campus’ speech” or
identifying when “a school’s special need[s]” as recognized
in Tinker might justify regulating such speech, see 141
S. Ct. at 2045, our caselaw has set forth additional
standards that address that issue. Prior to Mahanoy, we
devised a three-factor test for “determin[ing], based on the
totality of the circumstances, whether [off-campus] speech
bears a sufficient nexus to the school” to allow regulation
by a school district. McNeil, 918 F.3d at 707. “This test is
flexible and fact-specific, but the relevant considerations
will include (1) the degree and likelihood of harm to the
school caused or augured by the speech, (2) whether it was
reasonably foreseeable that the speech would reach and
impact the school, and (3) the relation between the content
and context of the speech and the school.” Id. (citations
omitted).
Nothing in Mahanoy is inconsistent with our sufficient-
nexus test, much less “clearly irreconcilable” with it. See
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en
banc). The Supreme Court’s analysis of the school’s ability
to regulate B.L.’s speech in Mahanoy considered many of
the same factors, including whether “‘substantial
disruption’ of a school activity or a threatened harm to the
rights of others” had been shown; the fact that B.L.’s
speech, when posted, “might well be transmitted to other
students, team members, coaches, and faculty”; and the
“message” communicated by the post and whether it
implicated matters of legitimate concern to the school’s
special interests or more conventionally protected content.
See 141 S. Ct. at 2047. Moreover, the additional specific
CHEN V. ALBANY SCHOOL DISTRICT 27
considerations that the Court identified—whether the
school can be said to be acting in loco parentis in
regulating the speech; whether off-campus regulation
threatens a student’s ability to engage in certain speech “at
all”; and whether the speech implicates interests in
protecting unpopular ideas, id. at 2046—all fit comfortably
within the three-factor framework we articulated in McNeil,
particularly McNeil’s third factor. Properly applied, our
sufficient-nexus test avoids the concerns that the Court
identified about school regulation of off-campus speech.
We therefore must apply the McNeil sufficient-nexus test to
the speech at issue here, keeping in mind the additional
considerations identified in Mahanoy.
3
Under those standards, we think it is clear that Epple’s
speech bore a sufficient nexus to AHS to warrant
disciplinary action by the school.
Epple emphasizes that the Instagram account was
intended to be private and that it was never his intention “to
cause any school disruption.” But under McNeil, Epple’s
subjective intention to keep the account private is not
controlling, and we must consider “whether it was
reasonably foreseeable that the speech would reach and
impact the school.” 918 F.3d at 707 (emphasis added).
Epple, of course, failed in his effort to keep the posts
private, because a follower of the account told one of the
targeted students about it. See supra at 10. Given the ease
with which electronic communications may be copied or
shown to other persons, it was plainly foreseeable that
Epple’s posts would ultimately hit their targets, with
resulting significant impacts to those individual students
and to the school as a whole. See D.J.M. ex rel. D.M. v.
28 CHEN V. ALBANY SCHOOL DISTRICT
Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754, 762 (8th
Cir. 2011) (upholding school discipline against D.J.M. for
private instant messages to C.M. that contained threats
towards classmates, stating that “a reasonable person
should be aware that electronic communications can now
be easily forwarded” and that, “[s]ince C.M. was a
classmate of the targeted students, D.J.M. knew or at least
should have known that the classmates he referenced could
be told about his statements”).
Of course, as Mahanoy makes clear, the mere fact that a
student’s off-campus communication finds its way to the
school is not alone sufficient to warrant regulation by
school officials. See 141 S. Ct. at 2047 (invalidating
school’s discipline over B.L.’s off-campus speech despite
the fact that she used a medium that clearly “risk[ed]
transmission to the school itself”). But the remaining
McNeil factors strongly support the school’s assertion of
disciplinary authority here. Once the privacy of the
account was breached, and knowledge of the posts rapidly
(and predictably) spread, the “degree and likelihood of
harm to the school caused or augured by the speech” was
significant. McNeil, 918 F.3d at 707. The students who
were the targets of the posts’ vicious abuse reported that
they felt “devastated,” “scared,” and “bullied,” and that
their grades suffered. See supra at 13–14. One targeted
student missed multiple tests and days of school, and her
parents eventually withdrew her from AHS. Even students
who were not targeted by the posts became distraught and
were among a group who spontaneously gathered together,
“crying and yelling” and “too upset to go to class.” The
uncontested evidence shows that, as Assistant Principal
Pfohl explained, the “AHS school counselors and mental
health staff were inundated with students needing help to
CHEN V. ALBANY SCHOOL DISTRICT 29
handle their feelings of anger, sadness, betrayal and
frustration about the racist posts and comments in the
Instagram account.”
Epple contends that the students’ reactions to the
speech cannot be given controlling weight, because those
reactions were occasioned by the offensive content of the
speech and therefore raise the specter of a “heckler’s veto.”
He argues that “even the most racist expressive conduct
such as promoting the swastika as part of a Nazi party rally
is entitled to government protection” and that Mahanoy
underscores the school’s obligation to defend “unpopular
expression.” 141 S. Ct. at 2046. These arguments are
unavailing on the facts of this case. For two reasons, “the
relation between the content and context of the speech and
the school” here does not present the danger of censorship
and instead weighs heavily in favor of upholding the
school’s assertion of disciplinary authority. McNeil, 918
F.3d at 707.
First, once Epple’s posts hit their targets, the school
was confronted with a situation in which a number of its
students thereby became the subjects of “serious or severe
bullying or harassment targeting particular individuals”—
which Mahanoy specifically identifies as an “off-campus
circumstance[]” in which “[t]he school’s regulatory
interests remain significant.” 141 S. Ct. at 2045. As Epple
acknowledges, he was expelled on the ground that he had
engaged in “bullying” within the meaning of the generally
applicable and speech-neutral prohibitions contained
California Education Code section 48900.4. 4 Although
4
See CAL. EDUC. CODE § 48900.4 (authorizing expulsion if a student
“has intentionally engaged in harassment, threats, or intimidation,
30 CHEN V. ALBANY SCHOOL DISTRICT
Epple may be correct that his parents have the primary
responsibility for policing his off-campus use of social
media, the school’s authority and responsibility to act in
loco parentis also includes the role of protecting other
students from being maltreated by their classmates.
Epple’s conduct here strongly implicated that “significant”
interest of the school. See Mahanoy, 141 S. Ct. at 2045.
Epple is quite wrong in suggesting that the specifically
race-based nature of the harassment here somehow
immunizes it from the school’s authority to protect its
students from experiencing “serious or severe bullying or
harassment.” Mahanoy, 141 S. Ct. at 2045; cf. R.A.V., 505
U.S. at 389 (noting that general laws against harassing
conduct and other forms of employment discrimination
may be violated by speech). Indeed, a failure by the school
to respond to Epple’s harassment might have exposed it to
potential liability on the theory that it had “failed to
respond adequately” to a “racially hostile environment” of
which it had become aware. See Monteiro, 158 F.3d at
1033 (citation omitted); see also id. at 1034 (“It does not
take an educational psychologist to conclude that being
referred to by one’s peers by the most noxious racial epithet
directed against . . . pupils, that is sufficiently severe or pervasive to
have the actual and reasonably expected effect of materially disrupting
classwork, creating substantial disorder, and invading the rights of . . .
pupils by creating an intimidating or hostile educational environment”);
id. § 48900(r) (authorizing expulsion for “bullying,” which includes
acts defined in § 48900.4 that target a student and may reasonably be
expected, inter alia, to substantially interfere with the student’s
“academic performance” or “ability to participate in or benefit from”
the school’s services, or to have a “substantially detrimental effect on
the pupil’s physical or mental health”).
CHEN V. ALBANY SCHOOL DISTRICT 31
in the contemporary American lexicon, being shamed and
humiliated on the basis of one’s race, and having the school
authorities ignore or reject one’s complaints would
adversely affect a Black child’s ability to obtain the same
benefit from schooling as her white counterparts.”).
Second, Epple’s posts do not stand on the same footing
as his example of the “racist expressive conduct” of those
who use “the swastika as part of a Nazi party rally.” For
one thing, Epple never contended in the proceedings below
that, like swastika-waving Nazis, he was actually espousing
and communicating the view that Black people are
supposedly inferior. Although his summary judgment
motion described the images as “politically charged” and as
“seemingly advocat[ing] for a particular political ideology
through the use of satire,” Epple’s declaration in support of
that motion explained his posts as simply “juvenile and
offensive” attempts at “humor” that were posted “with the
sole intention of entertaining my friends.” As a result, his
claim that the school was somehow censoring the
promotion of a disfavored ideological message rings
hollow. Moreover, given the extraordinary nature of the
abuse Epple targeted at specific classmates, his discipline
does not raise the specter of punishment based on a “mere
desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint.” Tinker, 393
U.S. at 509. On the contrary, even assuming arguendo that
Epple’s posts did not amount to “fighting words” or true
threats, they were enough of a near-miss that, in the context
of minors in a secondary school environment, they are
nonetheless fairly viewed as “a particularly intolerable (and
socially unnecessary) mode of expressing whatever idea the
speaker wishes to convey.” R.A.V., 505 U.S. at 393; see
also Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307
32 CHEN V. ALBANY SCHOOL DISTRICT
F.3d 243, 267 (3d Cir. 2002) (noting that, for First
Amendment purposes, “the public school setting is
fundamentally different from other contexts, including the
university setting”). Students such as Epple remain free to
express offensive and other unpopular viewpoints, but that
does not include a license to disseminate severely harassing
invective targeted at particular classmates in a manner that
is readily and foreseeably transmissible to those students.
Epple again emphasizes that he did not ever intend for
the targets of his posts to ever see them. But having
constructed, so to speak, a ticking bomb of vicious targeted
abuse that could be readily detonated by anyone following
the account, Epple can hardly be surprised that his school
did not look the other way when that shrapnel began to hit
its targets at the school. And, as we have explained,
recognizing an authority in school administrators to
respond to the sort of harassment at issue here presents no
risk that they will thereby be able to “punish[] students
engaged in protected political speech in the comfort of their
own homes.” Epple’s actions had a sufficient nexus to
AHS, and his discipline fits comfortably within Tinker’s
framework and does not threaten the “marketplace of
ideas” at AHS. Mahanoy, 141 S. Ct. at 2046.
4
Although Chen’s involvement in the account was
substantially more limited than Epple’s, we conclude that
he was nonetheless properly subject to discipline by the
school as well.
As we have explained, see supra at 10–11, Chen
contributed to the Instagram account multiple times in ways
that were directly related to AHS. For example, he took a
picture of a Black student during class, without her
CHEN V. ALBANY SCHOOL DISTRICT 33
permission, and captioned it in the Snapchat app with the
statement, “She’s eating a fucking carrot.” Epple thereafter
posted that Snapchat screenshot to the yungcavage account.
Chen commented “Its too good” on a post comparing a
specific Black classmate to a gorilla, and he responded to
another student’s criticism of that post with the statement,
“fuck YOU you dirty zookeeping son of a bitch.” Chen
called a non-Black student a “nigger” after that student
guessed (incorrectly) that he created the account; and he
“liked” a post in which Epple called a Black classmate a
“nigger.”
Although Chen’s participation in the targeted abuse of
specific students in these posts was much less than Epple’s,
he affirmatively liked two such posts and denounced, in
vulgar terms, another follower who criticized one such
post. At the very least, Chen is akin to a student who eggs
on a bully who torments classmates. A school may
properly take account of such affirmative participation in
what ended up, after the account became known, as abusive
harassment targeted at particular students. Moreover,
several of the targeted students stated that the severity of
the hostile environment they experienced was exacerbated
by the knowledge that other students participated in the
account and “liked” the abusive posts. As with Epple,
Chen’s conduct has a sufficient nexus to AHS and, under
Tinker, was properly subject to discipline.
* * *
Accordingly, we reject Epple’s and Chen’s claims that
their First Amendment rights were violated by Defendants’
disciplinary actions towards them.
34 CHEN V. ALBANY SCHOOL DISTRICT
C
We reject Epple’s and Chen’s arguments that
Defendants violated their rights under the California
Constitution and California Education Code §§ 48950(a)
and 48907.
“Because California follows federal law for free
expression claims arising in the school setting,” Dariano v.
Morgan Hill Unified Sch. Dist., 767 F.3d 764, 776 n.4 (9th
Cir. 2014), Epple’s and Chen’s reliance on the California
Constitution fails for the same reasons discussed above.
See California Teachers Ass’n v. Governing Bd. of San
Diego Unified Sch. Dist., 53 Cal. Rptr. 2d 474, 480 (Ct.
App. 1996).
Epple’s and Chen’s reliance on California Education
Code § 48950(a) also fails. Section 48950(a) provides that
a school district may not discipline a student “solely on the
basis of conduct that is speech or other communication that,
when engaged in outside of the campus, is protected from
governmental restriction by the First Amendment to the
United States Constitution or Section 2 of Article I of the
California Constitution.” CAL. EDUC. CODE § 48950(a).
But, as we have explained, Epple’s and Chen’s speech
“outside of the campus” here is not “protected from
governmental restriction by the First Amendment.” The
limitation in § 48950(a) was therefore not violated here.
Moreover, § 48950(d) provides that “[t]his section does not
prohibit the imposition of discipline for harassment, threats,
or intimidation, unless constitutionally protected,” id.
§ 48950(d), and for the reasons we have set forth, the
relevant speech at issue constituted harassment that, under
the circumstances of this case, was not “constitutionally
CHEN V. ALBANY SCHOOL DISTRICT 35
protected.” Epple’s and Chen’s reliance on § 48950
therefore fails for this additional reason.
Epple’s and Chen’s argument under California
Education Code § 48907 fares no better. That section
provides, in relevant part, that “[p]upils of the public
schools, including charter schools, shall have the right to
exercise freedom of speech and of the press.” CAL. EDUC.
CODE § 48907(a). But California courts have made clear
that this provision “constitutes a statutory embodiment of
the Tinker and related First Amendment cases at that time.”
Smith v. Novato Unified Sch. Dist., 59 Cal. Rptr. 3d 508,
516 (Ct. App. 2007) (quoting Lopez v. Tulare Joint Union
High Sch. Dist. Bd. of Trs., 40 Cal. Rptr. 2d 762, 771 (Ct.
App. 1995)). 5 Therefore, § 48907 does not affect our
earlier analysis, and it does not preclude Defendants from
disciplining Epple and Chen here.
III
Epple claims that he was deprived of his due process
right to a fair hearing before an impartial tribunal because
Trutane, a member of the AUSD Board who voted to expel
him, was biased against him. As noted earlier, see supra at
17–18, the district court dismissed this claim on the ground
that Epple had failed to exhaust judicial remedies, as
assertedly required to attempt to avoid the preclusive effect
of the administrative decision against Epple. See Doe, 891
5
Smith recognized that “section 48907 provides broader protection”
than the federal First Amendment “for student speech in California
public school newspapers.” See 59 Cal. Rptr. 3d at 516 (emphasis
added). But as relevant here, § 48907 provides no greater protection
than the First Amendment. Id.
36 CHEN V. ALBANY SCHOOL DISTRICT
F.3d at 1155. However, Epple subsequently did file a
petition for a writ of mandate challenging the ACBE’s
decision, and the superior court denied the petition.6
Because Epple did not appeal that decision and it is now
final, he contends that he has exhausted his judicial
remedies and that we therefore must vacate the district
court’s dismissal of his due process claim. But even if
Epple is correct that his judicial remedies have now been
exhausted, we affirm the dismissal of Epple’s due process
claim on the separate ground that the state court’s decision
rejecting Epple’s claims of bias has preclusive effect here.
The California superior court expressly considered
Epple’s claim that his “[p]rocedural due process” rights
were violated in “that he was denied a fair hearing because
of bias by Trutane.” The court rejected that claim, holding
that “the record does not demonstrate an unacceptable
probability of bias by the members of the AUSD that
ordered his expulsion.” The court reasoned that “Trutane’s
involvement in various community activities related to
supporting impacted students and eliminating racism in the
schools during [the] time period at issue did not establish
the ‘concrete bias, personal interest, or malice’ necessary to
require her recusal.” Having litigated and lost this due
process issue in state court, Epple may not now relitigate
6
Under California law, a petition for a writ of administrative
mandamus under Code of Civil Procedure § 1094.5 is the ordinary
means for “inquiring into the validity of any final administrative order
or decision made as the result of a proceeding in which by law a
hearing is required to be given, evidence is required to be taken, and
discretion in the determination of facts is vested in the inferior tribunal,
corporation, board, or officer.” CAL. CODE CIV. PROC. § 1094.5(a);
Doe, 891 F.3d at 1155.
CHEN V. ALBANY SCHOOL DISTRICT 37
that issue in federal court.
“In determining the preclusive effect of a state
administrative decision or a state court judgment, we
follow the state’s rules of preclusion.” White v. City of
Pasadena, 671 F.3d 918, 926 (9th Cir. 2012). California’s
doctrine of “[i]ssue preclusion ‘prevents a party from
obtaining a second adjudication of an issue that has already
been adjudicated against that party on the merits by a court
of competent jurisdiction.’” Hardwick v. County of
Orange, 980 F.3d 733, 740 (9th Cir. 2020) (quoting Pajaro
Valley Water Mgmt. Agency v. McGrath, 27 Cal. Rptr. 3d
741, 745 (Ct. App. 2005)). “Issue preclusion applies: ‘(1)
after final adjudication (2) of an identical issue (3) actually
litigated and necessarily decided in the first suit and (4)
asserted against one who was a party in the first suit or one
in privity with that party.’” Id. (quoting DKN Holdings
LLC v. Faerber, 352 P.3d 378, 387 (Cal. 2015)). Epple
does not (and cannot) challenge the first, third, or fourth
elements. Instead, he challenges only the second element,
asserting that the issues are not identical because the due
process standard applied by the California superior court
differs from the federal due process standard recognized in
our caselaw. We disagree.
Applying the standards set forth in Nasha L.L.C. v. City
of Los Angeles, 22 Cal. Rptr. 3d 772 (Ct. App. 2004), the
superior court held that a violation of due process occurs in
the administrative context when there is “an unacceptable
probability of actual bias on the part” of an actual
decisionmaker. Id. at 780 (citation omitted). Epple
contends that this standard is materially different from the
federal due process standard, which he claims requires
recusal if there is “even an appearance of bias.” We
discern no material difference between Nasha and federal
38 CHEN V. ALBANY SCHOOL DISTRICT
law on this point.
Nasha’s standard requiring either actual bias or an
“unacceptable probability of actual bias” was drawn
verbatim from Breakzone Billiards v. City of Torrance, 97
Cal. Rptr. 2d 467, 492 (Ct. App. 2000), which quoted that
phrase from our decision in United States v. Oregon, 44
F.3d 758, 772 (9th Cir. 1994). And we, in turn, derived
that standard from Withrow v. Larkin, 421 U.S. 35 (1975),
in which the Court held that due process would be violated
in situations in which “the probability of actual bias on the
part of the judge or decisionmaker is too high to be
constitutionally tolerable.” Id. at 47 (emphasis added).
That was the same standard applied by the Supreme Court
in Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009),
where the Court reaffirmed that due process requires a
decisionmaker’s recusal, not only when he or she “has ‘a
direct, personal, substantial, pecuniary interest’ in a case,”
id. at 876 (citation omitted), but also when “the probability
of actual bias on the part of the judge or decisionmaker is
too high to be constitutionally tolerable.” Id. at 877(quoting Withrow, 421 U.S. at 47). Because, in applying
Nasha, the superior court applied the same federal standard
articulated in Withrow and reaffirmed in Caperton, Epple is
wrong in contending that the superior court did not decide
the identical federal due process issue that he seeks to
relitigate here. See also Williams v. Pennsylvania, 579 U.S.
1, 4 (2016) (applying the same “objective standard that
requires recusal when the likelihood of bias on the part of
the judge ‘ “is too high to be constitutionally tolerable” ’ ”
(quoting Caperton, 556 U.S. at 872 (in turn quoting
Withrow, 421 U.S. at 47))).
Epple’s contrary argument is based largely on a single
out-of-context quotation from this court’s decision in
CHEN V. ALBANY SCHOOL DISTRICT 39
Stivers v. Pierce, 71 F.3d 732 (9th Cir. 1995). In Stivers,
we stated:
There are two ways in which a plaintiff may
establish that he has been denied his
constitutional right to a fair hearing before
an impartial tribunal. In some cases, the
proceedings and surrounding circumstances
may demonstrate actual bias on the part of
the adjudicator. In other cases, the
adjudicator’s pecuniary or personal interest
in the outcome of the proceedings may
create an appearance of partiality that
violates due process, even without any
showing of actual bias.
Id. at 741 (citations omitted). Seizing on the latter
sentence, Epple claims that it stands for the proposition that
“even an appearance of bias in an administrative hearing
gives rise to a violation of due process.” But this statement
is merely a reference to, and not an alteration of, the settled
Withrow standard that has now been repeatedly reaffirmed
by the Supreme Court. That due process standard does not
require “any showing of actual bias,” id., but will also
apply upon a showing of a “probability of actual bias on
the part of the judge or decisionmaker” that “is too high to
be constitutionally tolerable.” Withrow, 421 U.S. at 47(emphasis added). Stivers’s reference to a constitutionally
disqualifying “appearance of partiality” merely restates the
Withrow rule in other terms.
Accordingly, the due process issue that Epple seeks to
raise in federal court is one that he has already litigated and
lost on the merits in a full and fair de novo review by a
California state court. The state court’s decision is
40 CHEN V. ALBANY SCHOOL DISTRICT
therefore entitled to preclusive effect, and it requires us to
reject Epple’s due process argument, regardless of whether
we would have reached the same conclusion as the state
court did. See B&B Hardware, Inc. v. Hargis Indus., Inc.,
575 U.S. 138, 157 (2015) (“[I]ssue preclusion prevents
relitigation of wrong decisions just as much as right ones.”
(simplified)).
IV
For the foregoing reasons, we affirm the district court’s
judgment.
AFFIRMED.
GOULD, Circuit Judge, concurring:
I join Judge Collins’s excellent opinion in full. I write
separately to express my views on the topic of hate speech,
disturbingly present in both the facts of the case before the
panel and regrettably, a reemerging threat to society
throughout the nation today. I reaffirm the viewpoint I
stated when another case involving hate speech in schools
came before this court: “Hate speech, whether in the form
of a burning cross, or in the form of a call for genocide, or
in the form of a tee shirt misusing biblical text to hold gay
students to scorn, need not under Supreme Court decisions
be given the full protection of the First Amendment in the
context of the school environment, where administrators
have a duty to protect students from physical or
psychological harms.” Harper v. Poway Unified Sch. Dist.,
455 F.3d 1052 (9th Cir. 2006) (Gould, J., concurring in the
denial of rehearing en banc), vacated on other grounds, 549
U.S. 1262 (2007). The continued prevalence of hate speech
CHEN V. ALBANY SCHOOL DISTRICT 41
and crimes against American citizens and residents on the
basis of race, ethnicity, religion, sexual orientation, gender
identity, and disability is evidence of the enduring threat of
hate crimes to the fabric of American democratic society
and to the safety and security of individuals. 1
In light of this threat, I write to underscore that the First
Amendment and Supreme Court precedent do not require
courts always to strike down a government entity’s
attempts to prevent harm to their citizens – especially in the
context of hateful speech at schools harming children.
The Supreme Court in Beauharnais v. Illinois, 343 U.S.
250 (1952), upheld a criminal libel statute that sought to
prevent the publications of items that subjected “citizens of
any race, color, creed or religion to contempt, derision, or
obloquy or which is productive of breach of the peace or
riots.” Though the viability of the Beauharnais decision has
been called into question by our sister circuits, 2 the case
1
The FBI collects data on the prevalence of hate crimes reported to the
agency by participating law enforcement agencies. E.g., Federal Bureau
of Investigation, 2019 Hate Crime Statistics, https://ucr.fbi.gov/hate-
crime/2019. Even if the reporting of hate crimes represents a fraction of
the overall population of a given citizenry, the existence of such hate
crimes can serve as a reminder to a given individual that others in
society do not see them as full, human members of society and that
others pose a risk to their participation in a democratic society. See e.g.,
Mari J. Matsuda, Public Response to Racist Speech: Considering the
Victim’s Story, 87 MICH. L. REV. 2320 (1989); National Museum of
African American History & Culture, The Evidence of Things Unsaid,
https://nmaahc.si.edu/explore/stories/evidence-things-unsaid.
2
We have also previously expressed skepticism of Beauharnais. See
Dworkin v. Hustler Mag. Inc., 867 F.2d 1188, 1200 (9th Cir. 1989)
(“We agree with the Seventh Circuit that the permissibility of group
42 CHEN V. ALBANY SCHOOL DISTRICT
has not been overturned and the Supreme Court’s rationale
focused on protecting the dignity of the enumerated class of
citizens remains persuasive. Courts should hesitate to
question attempts by the government, through its elected
bodies, to protect their constituents, and this deference is
applicable both when the actions in question are undertaken
at the federal level by the Congress of the United States and
when actions to protect students are undertaken at the local
level by an elected school board, such as in Albany,
California. Some may believe that attempts to solve the
persistent issue of hate speech are misguided and ill-
advised; but in response, the measured words of Justice
Frankfurter come to mind: “It may be argued, and
weightily, that this legislation will not help matters; that
tension and on occasion violence between racial and
religious groups must be traced to causes more deeply
embedded in our society than the rantings of modern
Know-Nothings. . . . That being so, it would be out of
bounds for the judiciary to deny the legislature a choice of
policy, provided it is not unrelated to the problem and not
forbidden by some explicit limitation on the State’s
power.” Id. at 262. This is especially true in the context of
libel claims [discussed in Beauharnais] is highly questionable at
best.”). However, those decisions centered on the libel theory rationale
within Beauharnais likely undermined by New York Times v. Sullivan,
376 U.S. 254 (1964), while the majority opinion in Beauharnais also
embraced a broad conception of the legislature’s ability to regulate hate
speech due to its pernicious effects on citizens’ ability to participate
fully in the democratic process as another basis for its ruling. This
rationale has reemerged throughout the years since the Beauharnais
opinion, see R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 416
(1992) (Stevens, J., concurring in the judgment).
CHEN V. ALBANY SCHOOL DISTRICT 43
the present case, where school administrators, including
members of the elected Alameda County Board of
Education, tried to protect their students from hate speech
that could reasonably be construed as containing an implied
threat of violence. Possibly, the school district could have
taken alternative routes, such as attempting to educate and
reform the perpetrators of the hate speech in line with the
school’s role as educators. But our role is not to dictate
education policy from the bench, but rather to ensure that
the Constitution and the applicable laws were correctly
followed. I conclude that the school district’s actions, in
light of the potential for violence, the substantial disruption
of school activities, and the infringement upon the rights of
other students to be physically secure in their learning
environment, were permissible and benign to the system of
free expression protected by the First Amendment. The
possibility that government actions aimed at improving the
lives of students may not eventually be fully effective is no
reason to say that the school board cannot try to protect its
students.
The context of the public school raises the stakes. The
public school is a special institution within American
society, serving as “the first opportunity most citizens have
to experience the power of government. . . [and t]he values
they learn there, they take with them in life.” New Jersey v.
T.L.O., 469 U.S. 325, 385–86 (1985) (Stevens, J.,
concurring in part and dissenting in part). This comes with
the understanding that even for public school officials, “[i]f
there is any fixed star in our constitutional constellation, it
is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters
of opinion.” W. Virginia State Bd. of Educ. v. Barnette, 319
U.S. 624, 642 (1943). However, this understanding of the
44 CHEN V. ALBANY SCHOOL DISTRICT
role of schools comes with a companion understanding that
schools serve an essential role in imbuing and inoculating
positive values in children, such as teaching the values
central to good citizenship. See, e.g., Pierce v. Soc'y of the
Sisters, 268 U.S. 510, 534 (1925). One aspect of those
values is a central understanding of the dignity and respect
that must be afforded to all citizens and people, regardless
of any personal characteristics or attributes like race,
religion, and sexual orientation, and the role of that respect
for the individual in the healthy functioning of a
multiracial, pluralistic democracy. As Justice Brennan
stated in Illinois v. Allen, 397 U.S. 337, 350-51 (1970), we
recognize “that respect for the individual which is the
lifeblood of the law.” See also Faretta v. California, 422
U.S. 806, 834 (1975). The flipside of that central
understanding is that hate speech is antithetical to the
values of this nation.
Hateful speech encourages hateful thoughts, which lead
to hateful goals of individuals; those, in turn, lead to hateful
actions and sometimes violence, resulting in harm to the
public. No court would seriously entertain an argument that
schools must teach hateful speech on the grounds of
academic equality or fairness when it so clearly is
antithetical to our values. Hate speech has no role in our
society and contributes little or nothing to the free-flowing
marketplace of ideas that is essential to protect in a school
environment. Just as a school cannot be forced to teach hate
speech, neither should it be forced to entertain and tolerate
within its walls hate speech promulgated by arrantly
misguided students. When school authorities take action to
root out the persistent echoes of racism that arise from time
to time in American society, courts should not stop them,
instead allowing racist comments to be rooted out and not
CHEN V. ALBANY SCHOOL DISTRICT 45
deemed protected by the First Amendment. These
principles apply with cogent force to hate speech that
threatens to dehumanize ethnic or racial groups within our
multiracial society.
We may properly consider the incalculable harm that
hate speech can cause ethnic or racial minorities in the
context of school settings. Justice Thomas’s words are
illustrative in this evaluation: “In every culture, certain
things acquire meaning well beyond what outsiders can
comprehend.” Virginia v. Black, 538 U.S. 343, 388 (2003)
(Thomas, J., dissenting). His words counsel us to keep in
mind the differing cultural and historical circumstances that
might lead different groups to experience hate speech
differently. Children go to school to enrich their lives and
gain knowledge and skills to assist their full and productive
participation in society. But consider how an African
American child must feel if confronted with images sent to
other students portraying the child as inferior, as less
intelligent and as less human. As in the facts of the case
before us, African American children may be particularly
sensitive to imagery portraying them as slaves or akin to
animals. Similarly, Jewish children may be particularly
sensitive to images portraying them as rats or vermin, or
even insects, as was done in Nazi Germany as prelude to
the Holocaust. Indeed, each ethnic, racial, or other minority
group will recognize visual images or verbal phrasings that
dehumanize their community and encourage hate to be
visited upon them, resulting in the disruption or
interference with their effective learning process. Such an
inquiry must be fact-specific and unique to the
circumstances of each case, but in an especially egregious
example like the case before us today, the answer is clear,
as expressed in the majority opinion. In my view, civilized
46 CHEN V. ALBANY SCHOOL DISTRICT
society should not tolerate imagery encouraging hate;
government bodies, consistent with the Constitution, can
and should be able to take steps to stop it.
We should understand the government, through our vast
network of public schools, must be able to address systemic
hatred towards minority groups within the boundaries of
the school, consistent with constitutional limits placed upon
government actors. Consider Justice Jackson’s warning
against “allow[ing] zeal for our own ideas of what is good
in public instruction to induce us to accept the role of a
super board of education for every school district in the
nation.” McCollum v. Bd. of Ed. of Sch. Dist. No. 71,
Champaign Cnty., Ill., 333 U.S. 203, 237 (1948) (Jackson,
J., concurring). We have a role to play when constitutional
rights, such as those involving free speech in the case
before us, are implicated, but primary responsibility for the
operation of the school rests with elected officials and their
selected representatives, and we should not stand in the
way of school boards protecting their own students from
the vile effects of hate speech.
School boards properly have power to discipline the
perpetrators of hate speech. Despite the lower court record
indicating that some involved students allegedly boasted
that “they were going to win” and not face the
consequences of their hurtful speech, I conclude that
culpable racist students are properly punished for their
abhorrent actions, which in this case dehumanized African
American students through imagery and verbiage harkening
back to the days of slavery and the discredited language of
eugenics.
I write to stress that school officials, and government
officials more broadly, should not be unduly constrained in
CHEN V. ALBANY SCHOOL DISTRICT 47
their attempts to regulate hate speech for the purpose of
protecting the intended targets of said speech. This may
require some refining of the Supreme Court’s prior
guidance in its precedents. For example, while recognizing
that my views on hate speech may be less protective of
speech than some current doctrine, I would conclude here
that the racist characterizations and images, dehumanizing
African Americans students, is sufficient to show a threat
of imminent violence, fights or other attacks on African
Americans, including, within the school context, bullying
and harassment. Justice Thomas, in his dissent in Virginia
v. Black involving a state statute banning cross burning
with an intent to intimidate, noted his disagreement with
the majority opinion’s rationale that “imput[ed] an
expressive component to the activity in question [i.e., cross
burning].” 538 U.S. 343, 388 (2003) (Thomas, J.,
dissenting). Instead, Justice Thomas focused on the
intimidating conduct itself as grounds for upholding the
Virginia statute. Refocusing our attention on the hate
speech issues in this case, I conclude that “just as one
cannot burn down someone’s house to make a political
point and then seek refuge in the First Amendment, those
who hate cannot terrorize and intimidate to make their
point.” Id. at 394. In our case, the culprits believed that
they could escape the consequences of their hate speech
that generated indisputable fear and intimidation in their
targeted student victims because their conduct was couched
in avowed “speech.” If the Supreme Court decides to
reassess its precedents in this area, I urge them to not blink
the fact of grievous harm that hate speech causes its targets.
I also urge the Court not to give any First Amendment
protection for racist hate speech. For example, the Court
could consider modifying the Brandenburg test to require
48 CHEN V. ALBANY SCHOOL DISTRICT
only a probable and emerging threat of violence rather than
imminent lawless action as a result of speech in order to
regulate it. Regardless, I would adopt an expansive view of
the ability of government officials who regulate schools to
protect the future citizens they are bound to serve and
educate.