The Madison School District in Wisconsin fired school guard Marlon Anderson for quoting the n-word back to a Madison West High School student in explaining why the student shouldn’t have used that word.
The district has a “zero tolerance” policy for use of the word by any student or employee. But the issue is more complex than one might think; the courts have ruled on both sides.
When I appeared on a panel before the Inns of Court in Houston, Texas, on the topic “Free Speech on Campus,” the matter of hate and racist speech came up and whether the Constitution protects it.
It does and does not. One panelist, a lawyer and regent at a flagship university in Texas, said that if an African-American student offended someone with racist language, he or she “would be history,” expelled before “the end of the day.”
But if public schools take government money, they must comply with the First Amendment.
The second panelist, an African-American law student, said, “I know the n______ word is protected.” She said the word.
I had to deal with this issue as a trustee at a college in Texas. Two African-American employees got into a heated argument, with one losing her temper and referring to the other with a racist epithet. The target asked the administration to fire the offender, and it did.
When I asked the administration whether the First Amendment protected the offender’s epithet, the response was that another ruling by the Supreme Court supported the firing. In 2006 the court ruled in Garcetti v. Ceballos that the administration can to some extent control the speech of employees to maintain an effective public workplace.
Suppose, as an illustration, a professor is hired to teach freshman composition but decides instead to teach, say, poetry, arguing that the Constitution protects his academic freedom and right to free speech in the classroom.
The school can fire him for this free speech. The Garcetti ruling states, “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Anderson was on an on-the-job public employee when he spoke the offensive word.
Still, I think firing the guard for accurately quoting a student does not pass the smell test. Court history generally argues for freedom of even hate and racist speech. Said the late Supreme Court Justice Antonin Scalia, “If you stop speech that hurts other peoples’ feelings, the First Amendment will become a dead letter.” And when Justice Samuel AlitoSamuel AlitoA politicized Supreme Court? That was the point Locked and Loaded: Supreme Court is ready for a showdown on the Second Amendment The Hill's Morning Report - Presented by Altria - Jan. 6 panel flexes its muscle MORE was an appellate judge, he opined, “There is no categorical ‘harassment exception’ in the First Amendment’s free speech.”
Many in the scholarly world have also argued for constitutional protection of hate speech. For example, John Banzhaf, a professor at George Washington University Law School, observed, “There is no hate speech exception of the U.S. Constitution.” And Eugene Volokh, who teaches free-speech law at UCLA School of Law, asserts, “There is no First Amendment exception for racist speech, or exclusionary speech, or ... for speech by university students that ‘created a hostile educational environment for others.’”
If the KKK can march down streets in Jewish neighborhoods in Skokie, Ill., security guard Marlon Anderson can quote a kid for using a racial slur and tell him not to use it again in the school.
Ronald L. Trowbridge is a policy fellow at the Oakland, California-based Independent Institute and a former director of the Fulbright Scholars Program. He later served as chief of staff for former U.S. Chief Justice Warren Burger.