A first-grader from California was punished for a drawing she made at school. Federal lawsuit which examines whether the First Amendment to the Constitution also applies to the first class.
In March 2021, the elementary school student, referred to in legal documents as “BB,” drew a sketch depicting several people of different races and “depicting three classmates and herself holding hands,” the family’s complaint states. BB wrote “Black Lives Matter” over the drawing (so) with the words “every life” under the slogan.
BB then gave the drawing to one of her classmates, who is black, in an attempt (as she later testified) to comfort her classmate.
The words every life are of course similar to the phrase “All Lives Matter”, which has led to a controversial reply on the Black Lives Matter movement following the killing of George Floyd in 2020.
This similarity – whether the first-grader was aware of it or not – soon got BB in trouble. On the same day she made the drawing, BB was told by school principal Jesus Becerra that her drawing was “inappropriate” and allegedly “racist.” (The parties dispute whether Becerra told BB the drawing was “racist.” The defense claims BB’s testimony on the subject is inconsistent.)
BB had to apologize to her classmate, she was forbidden from painting any more pictures at school, and she was not allowed to go on recess for two weeks.
According to court documents obtained by ReasonBB and her mother, Chelsea Boyle, filed a series of complaints against the Capistrano Unified School District, alleging violation of the First Amendment.
“For more than 100 years, the Supreme Court has recognized that children retain their civil rights even when they are in school,” says Caleb Trotter, an attorney with the Pacific Legal Foundation (PLF), which is representing the family. Reason. “Just as a public school cannot punish a child for refusing to obey and salute the American flag, Capistrano Unified School District officials could not punish BB for innocently deviating from racial orthodoxy.”
In February of this year, District Judge David O. Carter governed in favor of the defendants, giving “great weight to the fact that the students in question were in first grade.” PLF has appealed the decision, and the case will be heard by the U.S. Court of Appeals for the 9th Circuit. A PLF spokesperson said Reason that the case is likely to be scheduled for oral argument sometime in 2025.
Judge Carter acknowledged in his opinion granting summary judgment that “BB’s intentions were innocent,” but noted that relevant Supreme Court case law, Tinker v. Des Moines Independent Community School District (1969) “does not focus on the speaker’s intentions.”
Rather, Craft The judge ruled that while First Amendment protections generally extend to public schools, the determining factor in each case is whether the statement in question “would substantially impair the discipline necessary for the functioning of the school.”
This area of jurisprudence is “notoriously vague,” says Barry McDonald, a law professor at Pepperdine Caruso School of Law. “In the Craft In this case, the Supreme Court found that student expression is protected unless it significantly disrupts the educational process or violates the rights of other students,” says McDonald Reason“The Supreme Court has never clarified what the latter term means, and lower courts have struggled to explain its meaning.”
This ambiguity has caused confusion as courts have struggled to define the limits of free speech protection in education. Did BB’s drawing disrupt the classroom? Did it constitute a “violation of the rights of others” as in Craft? To what extent does their age matter? And perhaps most importantly, how much discretion should courts give schools to make these decisions? The 9th Circuit will be tasked with answering these and other questions when it hears the case in 2025. Trotter, the PLF attorney, said last month in response to Carter’s granting of summary judgment: “As absurd as this case is, if this decision stands … it is a precedent.”
“We are aware of the recent media attention surrounding this matter,” said a spokesperson for the Capistrano Unified School District. “The district disputes the version of events reported in the media and we look forward to resolving this matter through the proper legal channels.”