The Volokh Conspiracy
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Settlement as to Alleged Suspension for Saying "Illegal Alien" in Class Discussion
High school student gets correction of school records, $20K, and public apology for "mischaracterization of racial bias."
From today's order by Judge Thomas Schroeder (M.D.N.C.) in C.M. v. Davidson County School Dist. Bd. of Ed., approving a settlement:
The proposed revised settlement agreement provides C.M. a public apology from the Davidson County Board of Education for a "mischaracterization of racial bias arising from [C.M.]'s comments," correction of C.M.'s school records, the Board's "acknowledge[ment] [of] the inappropriate response to this matter by a former member," and monetary compensation of $20,000. In exchange, Plaintiff has agreed to release any and all claims against the Defendants, and the parties have agreed to pay their own attorneys' fees and costs. The agreement specifies that its terms "are not to be construed as an admission of liability or wrongdoing" by either party and that the settlement "is entered as a cost-effective alternative to costly legal proceedings."
Here are the factual allegations, from the motion for a preliminary injunction:
C.M. asked his English teacher whether a reference to "aliens" during class discussion referred to "space aliens or illegal aliens who need green cards." C.M.'s question did not substantially disrupt class, nor did his comment interfere with the School's work or collide with other students' rights.
But the School equated C.M.'s question with a vile racial slur pursuant to Board policy and suspended him for three days, out of school, without a hearing or the opportunity to appeal…. The Board upheld C.M.'s School suspension pursuant to its policy equating the word "aliens" with "the n word."
The New York Post (Yaron Steinbuch) reported on the initial controversy as well, as did the Carolina Journal (Briana Kraemer) and Hans Bader (Liberty Unyielding). As I noted when the first hit the news,
If the facts are as described in the press coverage, this would likely be a violation of the First Amendment; and even apart from the First Amendment, it strikes me as an improper attempt to enforce a particular ideological orthodoxy.
Tinker v. Des Moines Indep. Comm. School Dist. (1969), does allow speech to be restricted when it "materially disrupts classwork or involves substantial disorder or invasion of the rights of others," and this has in effect been read to allow a "heckler's veto" when enough people threaten the speaker. But I doubt that one such threat should qualify (especially as a basis for a suspension), or else virtually any kind of controversial statement on any topic—abortion, war, affirmative action, the police, or a vast range of other topics—could be punished simply because one person sufficiently dislikes it. (After all, if speech can be punished because someone threatens to fight someone over the official legal term "illegal alien," it could equally be punished whenever someone threats to fight someone over a substantive policy position, e.g., "immigration law should be enforced, by deporting people who are not legally allowed to be in the country.")
