Fleeting disruption prosecuted as 'hate crime' in latest spat over school board public comments

At a time when school boards are facing litigation and recalls for censoring public comments at meetings, a small town near Seattle is going a step further by treating fleeting disruption as a crime.

Two Zoom participants in an Enumclaw school board meeting consecutively played an unidentified "track" with the n-word repeated several times when Superintendent Shaun Carey, who is black, was speaking. 

The first person displayed an image of George Floyd, the black man killed by Minneapolis police in 2020, while the track was playing, public information officer Jessica McCartney told The Courier-Herald. The second appeared to be an "elderly white male."

Police are floating the possibility of "a number of search warrants to capture data to identify the unique addresses of the devices used to disturb the meeting," Commander Mike Graddon said in a Nextdoor message Dec. 1.

"This case is being investigated as an intentional hate crime," he continued. "Additional law violations pertaining to disturbing a school meeting and disorderly conduct are being weighed." Investigators will "exhaust all potential leads."

The scope of the investigation recalls the 11-day surveillance review conducted by University of Connecticut police to identify two students yelling a racial slur in an empty parking lot in 2019. 

They were charged under Connecticut's 100-year-old "ridicule" law, widely viewed as unconstitutional. A 16-year-old was arrested under the law this spring for posting a photo of a black classmate with the caption "Why is there a [n-word] in my homeroom?"

Law professor Eugene Volokh, who runs UCLA's First Amendment clinic, told Just the News that prosecuting the Enumclaw disruptors based on the content of their speech would be unconstitutional.

The incident doesn't even plausibly violate Washington's disorderly conduct statute, he said, because it didn't cause a "substantial disruption." Volokh is also a longtime critic of Connecticut's law and how prosecutors have widely applied a statute explicitly limited to "advertisement[s]."

In its controversial Sept. 29 letter to President Biden, the National School Boards Association claimed that school boards were facing "domestic terrorism and hate crimes" by people upset about COVID-19 policies and classroom discussions of race. 

One of its examples was a man who "yelled a Nazi salute in protest to masking requirements," though he was reportedly comparing mask supporters to Adolf Hitler. 

In response, 18 state members have voted to "withdraw membership, participation, or dues from NSBA," according to a list by Parents Defending Education last updated Dec. 8. Axios claims they accounted for more than 40% of annual dues paid by NSBA members in 2019.

The Washington State School Directors' Association is not among the departures, and it has also not "distanced" itself from NSBA's letter in any way, the parents' group said. 

WSSDA published a statement Sept. 30 with the same tone as NSBA's letter, though it didn't request federal intervention or cite terrorism or hate crimes. One of NSBA's board members this school year is from a Washington school district.

The Enumclaw district's statements alternately claimed the disruptions were brief and indelible. "We were able to quickly put the [first] individual in a [virtual] waiting room," spokesperson McCartney told the Courier-Herald, at which point the second person "unmuted himself and played the same track."

The newspaper said McCartney then "quickly" shut down the Zoom platform, the board took a recess, and reconvened without Zoom. 

McCartney told Just the News the district doesn't know what track was playing but assumes it was a song that either natively included the repeated n-word or was looped to create that effect. Rap music often includes the five-letter rendering of the n-word, used as a friendly greeting.

The disruptions were only possible because the district didn't mute Zoom participants by default. It has since banned online public comment and moved in-person comments to the end of meetings.

Superintendent Carey called the incident "spontaneous hate speech" that "will not be tolerated," and the mayor and city councilmembers invoked U2 lyrics to describe the pain they felt.

"Some of our town pride died Monday night" and this "stain ... must be removed," they wrote on Facebook. "When will we all step up and denounce what occurred on that Monday night. We decided now, not later to address hate and racism."

Commenters on the newspaper's Facebook post about the disruptions argued whether the hate crime law was applicable. 

"Where is the RCW [Revised Code of Washington] for this crime?" one wrote. "If it is not a crime, then why are the police investigating, and what can they do once the investigation is over?" The commenter noted the law exempts speech where "it is apparent to the victim" that the perpetrator "does not have the ability to carry out the threat."

The content of the disruption is irrelevant for the purpose of the disorderly conduct law, which punishes "talking out of turn," Volokh wrote in an email. "If they were playing Sesame Street that might be potentially disruptive."

He cited a 2016 Washington Court of Appeals ruling that knocked down an overbreadth challenge to the disorderly conduct statute by a defendant who was convicted for reading a prepared statement in a courtroom as an audience member.

The defendant was physically removed, at which point a second person did the same and was removed, followed by a third person. "The interruptions delayed court proceedings by 20 minutes," the ruling said. Under the law, the state must prove "the intentional disruption was substantial, meaning that it reasonably caused the meeting to be delayed or canceled."

The Zoom interruptions in Enumclaw simply don't reach that threshold, according to Volokh, and they could have been prevented with a default mute policy. Even so, the school board couldn't constitutionally shut down a "racist rant" during a person's scheduled public comment.

The law professor acknowledged that the viewpoint-neutrality requirement has enabled "very unpleasant" public meetings in recent years where participants "habitually rant," discouraging teachers from bringing their students to witness democracy in action.

McCartney and Cdr. Graddon didn't respond to queries about Volokh's legal analysis. Neither did Enumclaw's contracted prosecutor, Krista White-Swain.