Were boy's constitutional rights violated with punishment for saying 'illegal aliens'?

(TND) — North Carolina school officials are being accused of violating a student's constitutional rights after suspending him for saying the words "illegal aliens" in class.

The Liberty Justice Center filed a lawsuit this week against the Davidson County Board of Education in Lexington, North Carolina, on behalf of a 16-year-old student. An assistant principal at the school is also named in the suit.

The boy, Christian McGhee, asked a clarifying question in class that resulted in “a harsh suspension and false accusations of racism by his own school,” according to the Liberty Justice Center.

McGhee was excused to use the restroom during his English class April 9, according to the complaint. When he returned to class, the word “aliens” was being used in a class discussion.

He raised his hand and asked if aliens referred to “space aliens or illegal aliens who need green cards,” according to the complaint.

Afterward, McGhee and a Hispanic classmate were questioned about the incident. The plaintiffs claim the Hispanic classmate was not offended, and they say McGhee’s comment didn’t cause a disruption.

But the complaint states that the school suspended the boy three days for allegedly making a racially insensitive remark that caused a class disturbance.

The complaint states that the school justified McGhee’s suspension by comparing his situation to suspensions given to other students “for saying the N word or anything else under the sun that’s racially charged that creates a disruption in the classroom.”

“Even though Christian asked a factual, non-threatening question—about a word the class was discussing—the school board branded him with false accusations of racism,” Buck Dougherty, senior counsel at the Liberty Justice Center, said in a news release. “The school has not only violated his constitutional right to free speech, but also his right to due process and his right to access education, a guaranteed right under North Carolina law. We are proud to stand beside Christian and his family in challenging this egregious violation of the First and Fourteenth Amendments.”

They’re seeking the removal of the suspension from his record, a public apology and monetary damages.

One free speech expert who isn't involved in the case said the school, based on the details in the complaint, appears to be on “relatively unstable ground.”

This could be a winning case for the family, said Steven Collis, a law professor and the director of the Bech-Loughlin First Amendment Center at the University of Texas.

The Supreme Court has held for decades that students don’t shed their constitutional rights when they enter the schoolhouse gates.

Schools can regulate speech in narrow circumstances, Collis said. A school can regulate speech that's vulgar and offensive, he said.

“But I think the school is going to have a difficult time succeeding on that argument here,” Collis said.

Different “discourse communities” across the country find different words or phrases offensive or racially insensitive.

Unlike the N-word, there isn’t widespread opinion that “illegal aliens” is offensive.

“The problem you have is that outside of their discourse community, there's a whole bunch of other discourse communities,” Collis said. “Some completely reject that interpretation of the word ‘alien’ on political grounds, and others don't even know that it is an offensive term.”

The term also carries “a pretty powerful political connotation,” so Collis said one could argue that the school punished a political viewpoint.

School policies aside, Collis said the labels “racial language” or “racially insensitive language” are legally meaningless.

“Outside of the schoolhouse, there is no category of speech called racially insensitive speech that government can then regulate,” he said. “People say racially insensitive things all the time. They say explicitly, blatantly bigoted things all the time, and our First Amendment allows that to happen. The assumption under our First Amendment is that we can handle it. As human beings, we can handle that. And we combat that type of insensitive or offensive speech with more speech.”

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