Does the alleged suspension of a student for saying “illegal aliens” violate the First Amendment?

A 16-year-old boy has sparked a debate about free speech – one that is already drawing viewers outside his North Carolina district – after he was suspended for allegedly making “a racially insensitive remark that led to classroom unrest.” .

The Racially Insensitive Remark: Referring to undocumented immigrants as “illegal aliens.” Invoking this term would trigger the beginning of a legal odyssey, still in its early stages, in the form of a Federal lawsuit on the grounds that Central Davidson High School Assistant Principal Eric Anderson violated Christian McGhee’s right to free speech by temporarily suspending him from class over a dispute over offensive language.

Of course, what constitutes offensive speech depends on who is judging it. During an English class in April, McGhee said he asked for clarification on a vocabulary word: aliens. “Like space aliens,” he asked, “or illegal aliens without green cards?” In response, a Hispanic student — another minor referred to in the lawsuit under the pseudonym “R.” — allegedly joked , that he would “kick McGhee’s ass.”

The exchange led to a meeting with Anderson, the assistant principal. “Mr. Anderson later recalled telling (McGhee) that it would have been more ‘respectful’ for (McGhee) to phrase his question as referring to ‘the people’ who ‘need a green card.’ ” McGhee’s complaint states. “(McGhee) and R. have a good relationship. R. confided (McGhee) that he “did not cry” during his meeting with Anderson – the principal reportedly claimed R. actually burst into tears during the exchange – “and neither did that.” He was “upset.” or “offended” by (McGhee’s) question. R. said: “If anyone is racist, it’s (Mr. Anderson) because he asked me why my Spanish grade was so bad” – an obvious reference to R.’s ethnicity.

McGhee’s colleague received a short school suspension, while McGhee was banned from campus for three days. He was not allowed to appeal under school district policy, which precludes that route if a suspension lasts less than 10 days. And while a three-day suspension probably doesn’t sound like it would make the sky fall, McGhee’s lawsuit says he hopes to get an athletic scholarship to college, which may now be in jeopardy.

So the question of the hour is: If the facts are as McGhee interpreted them, did Anderson violate the 16-year-old’s First Amendment rights? As far as case law goes, the answer is a little more nebulous than you might expect. But it still seems that justification is a likely outcome (and, at least in my opinion, rightly so).

Where the judges fall could be traced back to a ruling from the 1960s –Tinker v. Des Moines Independent Community School District— in which the Supreme Court sided with two students who wore black armbands in their public school to protest the Vietnam War. “It can hardly be argued,” Justice Abe Fortas wrote for the majority, “that either students or teachers lose their constitutional rights to free speech at the school gate.”

The Craft The decision established an exception: schools can actually try to prevent and punish “actually or potentially disruptive behavior.” Possibly is a key word here, as Vikram David Amar, professor of law at UC Davis, and Jason Mazzone, professor of law at the University of Illinois at Urbana-Champaign, point out Justia. In other words, according to this decision, the disorder need not actually occur, just as an attempted murder, as the name suggests, does not result in an actual murder. But just as the government has a legitimate interest in punishing attempted crimes, schools can also nip attempted disruptions in the bud.

“However, all of this points to some problems with the Craft “What if the likelihood of disruption exists solely because of ignorance, misunderstanding, oversensitivity, or idiosyncrasy on the part of (even a significant number of) people who hear the remark?” Wouldn’t allow a school in these circumstances to admit the speaker punish, amount to a problematic heckler’s veto?”

This seems particularly relevant here for several reasons. First, if McGhee’s account of his interaction with Anderson is true, then it was essentially Anderson who retroactively created a disruption that, according to McGhee and R., did not actually occur in any meaningful way. In a sense, there was actually a disruption that was supposedly brought about by the person doing the punishment, rather than those being punished.

But the second question is the more important one: If McGhee’s behavior – the mere mention of “illegal aliens” –Is Then wouldn’t it be fair game for public schools to censor a controversial topic? If a “disorder” is defined as anything that could be offensive, then we’re in trouble, since the Venn diagram of “things we all agree on as a nation” is essentially two lonely circles at that point . This is particularly difficult to reconcile with the Supreme Court’s decision Craftwhich supposedly serves as a bulwark against state-sanctioned discrimination and censorship.

It’s also difficult to reconcile with the fact that until a few years ago, “illegal alien” was an official term used by the government to describe undocumented immigrants. The Library of Congress stopped using the term in 2016 and President Joe Biden signed an executive order advising the federal government not to use the term in 2021. To argue that three years later the term is now so offensive that a 16-year-old should know not to invoke it requires living in a different reality.

Those who opt for less incriminating labels rather than “illegal alien” – I include myself in this camp – should also hope that McGhee is vindicated if his report stands up to scrutiny in court. Almost everything seems to be political these days, which means that a student with a more liberal vocabulary could very well be the next to be suspended from school.