Student suspended for using term ‘illegal alien’ in English class, even though the term is legally accurate and protected by the First Amendment

The term “illegal alien” is used in federal and state laws, the Code of Federal Regulations, court briefs, and Supreme Court decisions such as Arizona v. United States (2012). But as the Carolina Journal reported on April 15:

>>>A 16-year-old student at Central Davidson High School in Lexington, North Carolina was suspended for three days last week after using the term ‘illegal alien’ during a vocabulary assignment in his English class.

Leah McGhee’s son has a teacher who assigned vocabulary words during class last Tuesday, including the word ‘alien.’ McGhee says her son made an effort to understand the assignment and responded to his teacher, asking, “Like space aliens or illegal aliens without green cards?”

According to an email describing the incident, sent to local officials and shared with Carolina Journal, a young man in class took offense to his question and reportedly threatened to fight him, prompting the teacher to call in the assistant principal. Ultimately, his words were deemed by administrative staff to be offensive and disrespectful to classmates who are Hispanic.

“I didn’t make a statement directed towards anyone; I asked a question,” said the student in response to his suspension. “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.”

In addition to the three-day suspension, his record could be damaged as he aims to secure an athletic scholarship for college. He is actively involved in school clubs, track, and cross country.

“Because of his question, our son was disciplined and given THREE days OUT of school suspension for ‘racism,’” wrote his mother in the email. “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.”

Leah said the assistant principal has so far refused to remove the infraction from her son’s record. The family is working with an attorney to remedy the situation so it doesn’t harm his future, and they expect more developments in the days ahead…. The student handbook says that “schools 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 term “illegal alien” is used in federal statutes such as 8 USC 1365, 8 USC 1611, 6 USC 240, 13 USC 141, and 18 USC App. 1201-1203.

It is not a racial slur. Illegal aliens can be of any race. They are here illegally, so “illegal” is an accurate description. “Alien” is not a slur. My wife was a “legal alien” when I met her, and she referred to herself as such, because she was in the U.S. on a temporary visa when we met and got married, and thus had no right to remain in the U.S. permanently. As my wife sometimes tells me, “you married an alien.” (She was an employee of the Embassy of Gabon when I met her).

Likewise, illegal aliens have no right to remain in the U.S. permanently — or at all — so they are aliens, not immigrants. Calling them “undocumented immigrants” is doubly inaccurate, because aliens and immigrants have documents, just not documents entitling them to stay in the United States.

Progressive reporters sometimes mistakenly believe that “illegal alien” is not legal terminology, and write that in their newspaper, so school district lawyers may mistakenly believe that as a result. But that belief is wrong, as federal statutes using the term illustrate, and as the Supreme Court’s usage of the term demonstrates.

The student’s use of the term “illegal alien” didn’t reflect any hostility to immigrants — he was just giving an accurate example in response to a teacher’s question. But even if it had reflected anti-immigrant sentiment, it was still protected by the First Amendment. There is no “antiracism” or “anti-immigrant” exception to the First Amendment. For example, a federal appeals court ruled that a professor’s racially-charged, anti-immigration emails were protected by the First Amendment against a racial harassment lawsuit, were they were not aimed at any particular Hispanic employee who chose to sue over them, in Rodriguez v. Maricopa Community College District, 605 F.3d 703 (9th Cir. 2010).

There is no exception to the First Amendment for speech perceived as anti-Hispanic, even in the high-school context, as a court made clear in Thompson v. Board of Education of Chicago (1989).

Even though the student’s speech is not “political,” it remains protected by the First Amendment. Student speech does not have to be political or on a matter of public concern to be protected by the First Amendment. See, e.g., Garcia v. SUNY Health Sciences Center, 280 F.3d 98, 105 (2d Cir. 2005) (graduate student’s speech did not need to be on a matter of public concern to be protected); Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 765 (9th Cir. 2006) (even K-12 student’s speech need not be on a matter of public concern to be protected).The term “illegal alien” is obviously not disruptive by its very nature. Far more targeted offensive terminology has been held to be protected by the First Amendment, such as the “I’m not listening scab” buttons worn by students aimed at their replacement teachers, which a federal appeals court ruled were protected speech in Chandler v. McMinnville School District (9th Cir. 1992).