The two of us just finished co-teaching a law school class focused on the Free Speech 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 speech 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 school in North Carolina and thought (in the true spirit of law-school final-exam season) it might be useful, in this two-part series, for us to spot and analyze the major constitutional 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 organization that is viewed by many liberal organizations as having anti-Latina/o or anti-Catholic attitudes. 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 pedagogical) purposes assume them to be accurate:
Christian McGhee, a sixteen-year-old student at Central Davidson High School in Lexington, North Carolina, was recently suspended for using the term “illegal alien” during his English class. The incident took place on April 9th, when Christian’s teacher assigned the class vocabulary words, one of which was “alien.” Christian sought clarification on the word’s intended usage by asking, “Like space aliens or illegal aliens without green cards?”
. . . His teacher took the matter to the assistant principal since one of Christian’s classmates became offended and threatened to fight Christian. The assistant principal suspended Christian for three days, declaring that the student’s words were offensive and disrespectful to his Hispanic peers. 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 scholarship. . . . In an email, Christian’s mom wrote: “Because of his question, our son was disciplined and given three-day out of school suspension for ‘racism.’ He is devastated and concerned that the racism label on his school record will harm his future goal of receiving a track scholarship. We are concerned that he will fall behind in his classes due to being absent for three consecutive days.”
. . .
In defense of her son, Leah appeared on the Pete Kaliner Show and explained the details in depth. “One of the students in the class 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 class.” Leah says the students resolved their miscommunication in the hallway, and the threatening child said he was “just joking.”
Then, hours later, Leah got a call from the school, explaining how her son had been written up and suspended for a “racially insensitive comment.” According to Leah, the assistant principal pulled out the offended student again and asked him if he felt the question was racially charged. Christian was not allowed to explain himself again. Upon hearing this, Christian’s parents met with the assistant principal and tried to explain that the term is present in U.S. federal code. “The principal would not accept any of our requests to remove the suspension.” Because of this, Christian was barred from participating in track meets and school clubs.
The Davidson County Schools Student Handbook states that “[s]chools may place restrictions on a student’s right to free speech when the speech is obscene, abusive, promoting illegal drug use, or is reasonably expected to cause a substantial disruption to the school 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 School’s Principal, Heather Horton, declined to comment on the situation when contacted by FAIR.
Were we presented with such a set of facts on a law school exam in a First Amendment course, how might we go about identifying and analyzing the key issues? For starters, we would observe that the constitutional rules surrounding speech in K-12 schools are different from those in other public venues, including public higher education venues. The Supreme Court has decided several major cases involving student speech in public secondary schools. Five in particular warrant mention here. In 1969, in Tinker v. Des Moines Independent School District, the Court upheld the right of students free from punishment to wear armbands on school premises during the school day to protest against the Vietnam War (even though the school, in anticipation of the students’ protest, had hurriedly adopted and announced a no-armband policy), both because the school 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 school and indeed furthered what should have been the school’s objective of fostering citizenship skills and civic discussion. In Bethel School District v. Fraser, seventeen years later, the Court permitted a high school to discipline a student who had been warned not to but nonetheless did employ sophomoric sexual innuendo at a school assembly that students were required to attend, concluding that offensively lewd and indecent speech that might be allowed in other public contexts can be punished at high schools.
Two years later in 1988, the Court in Hazelwood School District v. Kuhlmeier reiterated 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.’” For this reason, “[a] school need not tolerate student speech that is inconsistent with its ‘basic educational mission,’ even though the government could not censor similar speech outside the school.” Kuhlmeier involved a Section 1983 action brought by high school journalism students who worked on the school newspaper against the principal based on the principal’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 class), the Tinker framework did not apply. Instead, the Court observed, “[with respect to] activities [that] may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences, [e]ducators are entitled to exercise greater control over . . . student expression to assure that participants 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 school.” Under this standard, the students’ First Amendment claim lost, and the principal prevailed.
The Court didn’t attend to many student-speech cases for the next few decades (outside the context of deciding when a school, by opening its facilities after hours, had created public fora), but in 2007, in Morse v. Frederick, the Court upheld a high school’s punishment of a student who, in disregard of the principal’s directions, unfurled at a school event (albeit one off school 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 schools could punish, at least when uttered at school or on a field trip. And finally, in 2021, in Mahanoy Area School District v. B.L., the Court held that a high school violated the First Amendment when it suspended a cheerleader from the cheer team on account of the student’s having posted (from her personal phone, outside of school grounds and school hours) an online screed on Snapchat, viewable only by her Snapchat friends, that used profanity to criticize the school and the school’s cheerleading squad. While the Court observed that the Tinker framework might permit a school to punish student speech that takes place off school premises and outside of school hours, in the present case the Snapchat posts did not materially disrupt school operations or cohesion on the cheerleading squad.
The Davidson County School Handbook, which reportedly allows schools to restrict student speech “when the speech is obscene, abusive, promoting illegal drug use, or is reasonably expected to cause a substantial disruption to the school 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—speech that is “abusive.”
Obviously, Christian McGhee’s question about the context in which “alien” was being tested 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 school’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 school authorities were permitted to “exercise greater control” over the student speech 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 school itself and its leaders (rather than just the views of the authors 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 speech in question took place within, rather than outside of, the school 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 whole class in the context of a curricular assignment concerning assigned vocabulary words. Given this clear curricular connection, Hazelwood’s language authorizing broad power on the part of a school “to assure that participants 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 School authorities.
If Hazelwood is read more narrowly (as some courts have interpreted it), to be a case mostly about school 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 speech occurring within a curriculum, then things get more complicated as Tinker and its approach might move center stage. We take up that analysis (along with a separate question of adequate notice) in Part II of the series.
