In this, the second of a two-part essay series, we continue to explore the constitutional issues raised by a recent episode in which a public high school (Central Davidson High School in Lexington, North Carolina) imposed disciplinary suspension on a student, Christian McGhee, for invoking the term “illegal alien” when asking a question to his teacher about an assignment. (Readers should refer to Part One for a fuller recitation of the relevant facts as we understand and take them to be.) In Part One, we laid out the larger First Amendment framework in which the dispute might be located and discussed how the Court’s language and reasoning in Hazelwood School District v. Kuhlmeier might help resolve some key issues. In the space below, we explore how things might look if the Hazelwood framework is not applied, and instead if the dispute were analyzed under the related but distinct doctrine created by the Court in Tinker v. Des Moines Independent School District, the seminal 1969 ruling invalidating the punishment of two public high school students for wearing armbands to school to protest the Vietnam War.
Tinker itself focuses on the school’s power to avoid, and punish, “actually or potentially disruptive conduct.” This last part of the formulation—“potentially disruptive”—is important, because it makes clear, to us at least, that conduct need not be actually disruptive to be punishable, provided that there was a substantial risk of disruption.
The Tinker Court did observe that there was no actual disruption at the school on account of the armbands that were worn. But we think the relevant perspective should be ex ante, not ex post, even as ex post data in a given scenario might in some small way be probative of ex ante risk A student should not escape punishment simply because disruption does not take place even though it was likely to occur; the school need not wait until actual disruption arises, and should be free to prevent disruption from occurring in the first place. To us, this makes sense in the same way that attempted crimes are still considered criminal whether or not the intended victim ended up being harmed. Even in the civil realm, although reckless driving may be punished more harshly if someone is injured, reckless driving is subject to punishment either way. Indeed, in other places the Tinker Court is more careful on this point, focusing properly on the existence vel non of facts that “might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities” as a yardstick for evaluating the permissibility of the administrators’ decisions.
Post-Tinker, the Court has sometimes fallen prey to an improper ex post perspective. In Mahanoy, for example, Justice Stephen Breyer’s opinion seemingly focused on whether the Snapchat posting did in fact cause a disturbance, not whether it created a substantial risk of disturbance. Of course, in many instances the ex ante and ex post questions may yield the same answer, but not always, and it’s important to clarify which question we care about.
The Central Davidson High authorities, according to the factual accounts, suspended Christian because a fellow student threatened to “fight” him. If that amounted to a true threat (rather than a joke)—something that should have been judged at the time the two students spoke without regard to whether a fight actually ever ensued—perhaps Christian’s speech could be deemed to have created a risk of disruption, and thus could be punished under Tinker. We think it odd, though, that school authorities would later ask the offended student whether he found Christian’s remark to be racially charged. Regardless of whether that particular student found the remark racially insensitive, the question, under Tinker, ought to be how likely the remark was, as a general matter, to generate disturbance and disruption, not how any one student might in fact have interpreted it—or how he said he interpreted it.
Yet all of this points up some problems with the Tinker disruption standard itself. What if the likelihood of disruption exists only by virtue of an ignorance or misunderstanding or hypersensitivity or idiosyncrasy on the part of (even a fair number of) people who hear the remark? Wouldn’t allowing a school to punish the speaker under those circumstances amount to a problematic heckler’s veto? A similar issue arises in the so-called “fighting words” setting, where a speaker can be punished if her speech is reasonably likely to cause someone else to inflict violence on the speaker. This is to be distinguished from punishable incitement, in which the speaker is punished because he has reason to believe and indeed intends that listeners will react to his words by lawbreaking as to others, imminently thereafter. It is also to be distinguished from true threats, as to which, the Court recently held, punishment requires the government to prove recklessness: that the defendant consciously disregarded a substantial risk that his communications would be reasonably viewed as threatening violence. (The status of the fighting-words doctrine itself is not clear today: it hasn’t been invoked by the Supreme Court in a long time to permit punishing a speaker rather than the person who throws the first punch.)
Perhaps, then, Tinker’s “disruption” test should not permit punishment of speech that reasonable people should respond to without creating disruption or disturbance. If so (and we acknowledge there is doctrinal uncertainty on this point) then the question arises of how objectively culpable Christian’s use of the term “illegal alien” was. Several thoughts on this come to mind. First, as is true in the debate over whether the N-word can ever be uttered in classrooms (in K-12 or higher ed) around the country, there is, at least as a logical matter, a distinction between “using” an epithet against someone and simply referring to one by vocalizing the term (such as one might when one relevantly quotes what someone else has said). Randy Kennedy at Harvard Law, one of the nation’s most eminent African-American law professors (and a liberal to boot) has been prominent in explaining and relying on that distinction. And in the present case, reports suggest, Christian didn’t deploy the contested term to target anyone, but instead uttered it in posing his question. (In this regard, the Tinker Court observed, in upholding the speech rights of the students, that the armband-wearing in question did not involve “aggressive action” against any fellow students.)
But should that be enough to insulate Christian from punishment? Certainly, as to its employees (as distinguished from students) public schools have sometimes been allowed to impose zero-tolerance policies for the use of particular terms in front of students. So, as one of us discussed in a prior column, the Seventh Circuit upheld the (unwise if not surreal) firing of an African-American public school janitor for uttering the N-word in a setting in which a student was calling the janitor the N-word and the janitor, in verbal self-defense, referred to the N-word by saying: “Do not call me that name. I’m not your [N-word.] Do not call me that.”
But, as just noted, that incident involved a public employee, not a student at a public school. And yet, should schools be allowed to tell students not to speak derogatorily about anyone or even refer to derogatory terms relating to certain kinds of characteristics (such as race, sex, religion or immigration status), whether or not the expression is directed towards any particular members of the school community, and whether or not people who might hear the words would cause a disturbance? Perhaps this is what the Davidson County Schools Student Handbook (quoted in Part One) is getting at by its reference to student speech that is “abusive.”
One obvious concern is whether school administrators can be counted on, as they seek to shield students from hurtful epithets, to adhere also to Tinker’s admonitions that school is an appropriate place for budding adults to discuss controversial matters, and that viewpoint discrimination by school authorities is to be avoided. We live in a world in which unpopular speech is quickly deemed offensive. During the Trump administration, various K-12 schools around the country suspended or otherwise punished students for wearing MAGA attire in particular to class in circumstances that suggest at least the possibility of viewpoint discrimination. Here, too, though, we might wonder whether all viewpoint regulation is necessarily impermissible. Might a school that allows a student to wear a “Being Gay is Normal” t-shirt nonetheless lawfully prohibit another student from wearing a t-shirt that expresses the opposite message, such as “God Hates Gays,” on the ground that the latter implicitly attacks gay individuals whereas the former does not attack non-gay individuals?
Such issues were precisely raised in a 2006 ruling (albeit one that was later vacated as moot, which eliminates any precedential value) from the U.S. Court of Appeals for the Ninth Circuit (affirming the district court’s denial of a preliminary injunction), where a two-judge majority rejected a high school student’s argument that the First Amendment protected his right to wear to school a t-shirt with an anti-gay message. Writing for the panel, Judge Stephen Reinhardt understood Tinker to mean that the student’s speech could be restricted because it collided with the educational rights of other students: “the School had a valid and lawful basis for restricting . . . [the student’s] wearing of his T-shirt on the ground that his conduct was injurious to gay and lesbian students and interfered with their right to learn.” While, Reinhardt explained, “name-calling is ordinarily protected [speech] outside the school context,” “public school students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation, have a right to be free from such attacks while on school campuses.” In dissent, Judge Alex Kozinski thought there was no likelihood of disruption under the Tinker standard, no evidence that any rights of other students were violated, and that the student’s mere wearing of the t-shirt to express a political view could not be punished.
All of the analysis above demonstrates, we believe, how complicated, murky (and unresolved) much of the doctrinal landscape in this realm is. On the facts of Christian McGhee’s suspension, however, we see a compelling reason why he ought to prevail in his challenge: the absence of clear notice that his (presumably well-intentioned) question using the contested term was out of bounds. Due process generally requires adequate notice that a wrongdoer may be punished for crossing a line before the line is actually crossed. (We put aside for these purposes any due process problem with the apparent policy in the school district that suspensions lasting less than 10 days are not administratively appealable, but we do note that such a policy seems troubling.)
Due process doesn’t seem to have been respected in Christian’s case. In this regard, it is helpful to observe that of the seminal five cases described above, one (Hazelwood) did not involve any student punishment, but instead an after-the-fact lawsuit brought by the students. The other four did involve student punishment, but in two of them (Tinker and Mahanoy), the Supreme Court ruled against the school authorities. And in the only two cases in which punishment was upheld, Bethel and Morse, the students were warned by school authorities (via sufficiently clear policies and/or specific admonitions to the students involved) that the students’ planned expressive conduct would violate school policy. The students were thus given fair notice.
Similar notice seems lacking on the (reported) facts of Christian’s case. If a school does, with regard to its curriculum or more generally, want to remove from the lexicon certain words or terms, or kinds of expression, it must, even assuming it has such broad power (and remember, even under the most generous Hazelwood standard, decisions as to curriculum in this regard would have to be minimally reasonable, so that removing “banana” from all curricular discourse would not permissible), let students know what those verboten expressions are, so as to avoid unfair surprise. Vague and boilerplate policies mentioning “disruption” and “abuse” would not seem to be adequate on the facts of Christian’s case. More specific advanced notice in such circumstances not only provides fairness to would-be violators, but also reduces a problematic “chilling effect” that would otherwise arise with regard to other students. If Christian’s punishment (without any warning or notice to him that his question to the teacher would generate a sanction) were upheld, other students might be chilled from raising questions about other current events, for fear that other students or administrators would take offense.
On the facts of Christian’s case, the concerns about vagueness and unfair surprise seem particularly strong given that the U.S. Supreme Court and the U.S. Code make use of the term “alien” in the non-citizen context all the time. Perhaps even more relevantly, a majority of the Supreme Court used the term “illegal alien” (and when we say “used” we mean chose to employ the term in describing a policy or group of individuals, rather than merely quoted some earlier case or outside authority using the term) as recently as 2020. Indeed, three Supreme Court Justices (Justice Samuel Alito, Chief Justice John Roberts, and Justice Clarence Thomas) used the term “illegal aliens” in an opinion just last month! (And readers might recall that President Joe Biden, in his State of the Union a few months ago, referred to a particular individual simply as “an illegal,” a term that strikes us as particularly dehumanizing.)
To be sure, Supreme Court opinions and federal code provisions and presidential utterances involve a different (and more adult) context than do high schools, but the usage of this term by such authoritative institutions in official contexts that we would like high school students to heed and learn about should, we think, mean that schools must tell students explicitly not to utter such terms at all, if that indeed be the school policy.