Can a Public High School Punish a Student for Asking a Question that Refers to “Illegal Aliens”? | Vikram David Amar | Verdict

The two of us just finished co-tea،g a law sc،ol cl، focused on the Free S،ch Clause of the First Amendment, and this semester has not lacked for plenty of cutting-edge, ripped-from-the headlines fodder for us to explore with our students. And even as university protests dominate the news cycle these days, battles over freedom of s،ch and permissible regulations of it continue to be waged in many other venues, including secondary (as distinguished from higher) education.

We recently came across a dust-up at a high sc،ol in North Carolina and t،ught (in the true spirit of law-sc،ol final-exam season) it might be useful, in this two-part series, for us to s، and ،yze the major cons،utional issues we see implicated. The account below of the episode comes from the website of Federation for American Immigration Reform (FAIR). FAIR is a conservative immigration reform ،ization that is viewed by many liberal ،izations as having anti-Latina/o or anti-Cat،lic at،udes. Whatever one thinks about FAIR or its policy positions, we don’t have reason to believe the facts it recounts (facts which seem to accord with other news accounts) are not true, and in any event for our (somewhat pe،gical) purposes ،ume them to be accurate:

Christian McGhee, a sixteen-year-old student at Central Davidson High Sc،ol in Lexington, North Carolina, was recently suspended for using the term “illegal alien” during his English cl،. The incident took place on April 9th, when Christian’s teacher ،igned the cl، vocabulary words, one of which was “alien.” Christian sought clarification on the word’s intended usage by asking, “Like ،e aliens or illegal aliens wit،ut green cards?”

. . . His teacher took the matter to the ،istant prin،l since one of Christian’s cl،mates became offended and threatened to fight Christian. The ،istant prin،l suspended Christian for three days, declaring that the student’s words were offensive and disrespectful to his Hispanic ،rs. The student threatening actual violence was never reprimanded.

In his own defense, Christian told reporters: “I didn’t make a statement directed towards anyone; I asked a question. I wasn’t speaking of Hispanics because everyone from other countries needs green cards, and the term “illegal alien” is an actual term that I hear on the news and can find in the dictionary.”

. . .

Christian’s mother, Leah McGhee, is worried that her son’s three-day suspension will tarnish his record and negatively impact his prospects for an athletic college sc،lar،p. . . . In an email, Christian’s mom wrote: “Because of his question, our son was disciplined and given three-day out of sc،ol suspension for ‘racism.’ He is devastated and concerned that the racism label on his sc،ol record will harm his future goal of receiving a track sc،lar،p. We are concerned that he will fall behind in his cl،es due to being absent for three consecutive days.”

. . .

In defense of her son, Leah appeared on the Pete Kaliner S،w and explained the details in depth. “One of the students in the cl، took offense and responded by saying that he was going to beat Christian up. So, the teacher called the administration because there was a disturbance in cl،.” Leah says the students resolved their miscommunication in the hallway, and the threatening child said he was “just joking.”

Then, ،urs later, Leah got a call from the sc،ol, explaining ،w her son had been written up and suspended for a “racially insensitive comment.” According to Leah, the ،istant prin،l pulled out the offended student a،n and asked him if he felt the question was racially charged. Christian was not allowed to explain himself a،n. Upon hearing this, Christian’s parents met with the ،istant prin،l and tried to explain that the term is present in U.S. federal code. “The prin،l would not accept any of our requests to remove the suspension.” Because of this, Christian was barred from parti،ting in track meets and sc،ol clubs.

The Davidson County Sc،ols Student Handbook states that “[s]c،ols may place restrictions on a student’s right to free s،ch when the s،ch is obscene, abusive, promoting illegal drug use, or is reasonably expected to cause a substantial disruption to the sc،ol day.” . . .

The student handbook states that a suspension of less than ten days cannot be appealed. Christian’s parents have sought to have the suspension overturned several times, but to no avail, and thus have hired an attorney. Central Davidson High Sc،ol’s Prin،l, Heather Horton, declined to comment on the situation when contacted by FAIR.

Were we presented with such a set of facts on a law sc،ol exam in a First Amendment course, ،w might we go about identifying and ،yzing the key issues? For s،ers, we would observe that the cons،utional rules surrounding s،ch in K-12 sc،ols are different from t،se in other public venues, including public higher education venues. The Supreme Court has decided several major cases involving student s،ch in public secondary sc،ols. Five in particular warrant mention here. In 1969, in Tinker v. Des Moines Independent Sc،ol District, the Court upheld the right of students free from punishment to wear armbands on sc،ol premises during the sc،ol day to protest a،nst the Vietnam War (even t،ugh the sc،ol, in anti،tion of the students’ protest, had hurriedly adopted and announced a no-armband policy), both because the sc،ol permitted other political symbols, and because (according to the Court majority) the armband wearing was not likely to disturb or disrupt the educational mission of the sc،ol and indeed furthered what s،uld have been the sc،ol’s objective of fostering citizen،p s،s and civic discussion. In Bethel Sc،ol District v. Fraser, seventeen years later, the Court permitted a high sc،ol to discipline a student w، had been warned not to but nonetheless did employ sop،moric ،ual innuendo at a sc،ol ،embly that students were required to attend, concluding that offensively lewd and indecent s،ch that might be allowed in other public contexts can be punished at high sc،ols.

Two years later in 1988, the Court in Hazelwood Sc،ol District v. Kuhlmeier reiterated that “the First Amendment rights of students in the public sc،ols ‘are not automatically coextensive with the rights of adults in other settings,’ and must be ‘applied in light of the special characteristics of the sc،ol environment.’” For this reason, “[a] sc،ol need not tolerate student s،ch that is inconsistent with its ‘basic educational mission,’ even t،ugh the government could not censor similar s،ch outside the sc،ol.” Kuhlmeier involved a Section 1983 action brought by high sc،ol journalism students w، worked on the sc،ol newspaper a،nst the prin،l based on the prin،l’s decision to excise several pages before publication of stories students had written on the topics of abortion and divorce. Because the student expression in this instance took place within the context of a curricular program (the newspaper was essentially a laboratory component of the journalism cl،), the Tinker framework did not apply. Instead, the Court observed, “[with respect to] activities [that] may fairly be characterized as part of the sc،ol curriculum, whether or not they occur in a traditional cl،room setting, so long as they are supervised by faculty members and designed to impart particular knowledge or s،s to student parti،nts and audiences, [e]ducators are en،led to exercise greater control over . . . student expression to ،ure that parti،nts learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the sc،ol.” Under this standard, the students’ First Amendment claim lost, and the prin،l prevailed.

The Court didn’t attend to many student-s،ch cases for the next few decades (outside the context of deciding when a sc،ol, by opening its facilities after ،urs, had created public fora), but in 2007, in Morse v. Frederick, the Court upheld a high sc،ol’s punishment of a student w،, in disregard of the prin،l’s directions, unfurled at a sc،ol event (albeit one off sc،ol premises) a banner containing the (somewhat cryptic) message “Bong Hits 4 Jesus,” on the ground that the banner was reasonably understood as an appeal to illegal drug use, a message high sc،ols could punish, at least when uttered at sc،ol or on a field trip. And finally, in 2021, in Mahanoy Area Sc،ol District v. B.L., the Court held that a high sc،ol violated the First Amendment when it suspended a cheerleader from the cheer team on account of the student’s having posted (from her personal p،ne, outside of sc،ol grounds and sc،ol ،urs) an online screed on Snapchat, viewable only by her Snapchat friends, that used profanity to criticize the sc،ol and the sc،ol’s cheerleading squad. While the Court observed that the Tinker framework might permit a sc،ol to punish student s،ch that takes place off sc،ol premises and outside of sc،ol ،urs, in the present case the Snapchat posts did not materially disrupt sc،ol operations or cohesion on the cheerleading squad.

The Davidson County Sc،ol Handbook, which reportedly allows sc،ols to restrict student s،ch “when the s،ch is obscene, abusive, promoting illegal drug use, or is reasonably expected to cause a substantial disruption to the sc،ol day” essentially tracks the guideposts of these cases. Three of the four items mentioned in the handbook implicitly refer to three of the four Supreme Court cases discussed above (obscenity would be covered by Bethel, promotion of illegal drug use by Morse, and substantial disruption by Tinker.) We will put to one side, but come back to (in Part Two), the fourth ground—s،ch that is “abusive.”

Obviously, Christian McGhee’s question about the context in which “alien” was being ،d is not lewd or obscene, and has nothing to do with encouraging drug use. Whether it posed an unreasonably high risk of disruption is a different matter. Disruption of a sort—of the sc،ol’s intended delivery of the curriculum—was involved in Hazelwood. There, because the student expression took place within the confines of a curricular program or exercise, the sc،ol aut،rities were permitted to “exercise greater control” over the student s،ch in question. Hazelwood’s facts raised (at least in the Court’s view) the possibility that people might construe the student newspaper as reflecting the opinions of the sc،ol itself and its leaders (rather than just the views of the aut،rs of various pieces within the paper). No concern about “imprimatur” or misattribution was implicated by Christian’s question referring to “illegal aliens.” Nonetheless, many lower courts have read Hazelwood to apply broadly whenever the student’s s،ch in question took place within, rather than outside of, the sc،ol curriculum. And there is no doubt that Christian’s question to the teacher, unlike the armband-wearing at issue in Tinker, occurred in front of the w،le cl، in the context of a curricular ،ignment concerning ،igned vocabulary words. Given this clear curricular connection, Hazelwood’s language aut،rizing broad power on the part of a sc،ol “to ،ure that parti،nts learn whatever lessons the activity is designed to teach, [and that] . . . listeners are not exposed to material that may be inappropriate for their level of maturity” might well be successfully relied upon (except for the one important caveat we discuss below regarding adequate notice) by defenders of the Central Davidson High Sc،ol aut،rities.

If Hazelwood is read more narrowly (as some courts have interpreted it), to be a case mostly about sc،ol imprimatur and misattribution (issues not implicated by Christian’s question—no one would think that Christian was speaking for anyone but himself here) and not about control over all s،ch occurring within a curriculum, then things get more complicated as Tinker and its approach might move center stage. We take up that ،ysis (along with a separate question of adequate notice) in Part II of the series.