First Amendment
Punishing first grader for ‘Black Lives Mater’ drawing violates First Amendment, appeal argues
A California school district violated the First Amendment when it punished a first grader who drew a picture for her friend with the phrases “Black Lives Mater” and “Any Life,” the Pacific Legal Foundation has argued in an appellate brief. (Image courtesy of the Pacific Legal Foundation)
A California school district violated the First Amendment when it punished a first grader who drew a picture for her friend with the phrases “Black Lives Mater” and “any life” written on it, the Pacific Legal Foundation has argued in an appellate brief.
The July 15 brief asks the 9th U.S. Circuit Court of Appeals at San Francisco to reverse a Feb. 22 decision by U.S. District Judge David O. Carter of the Central District of California that granted summary judgment to the Capistrano Unified School District in Mission Viejo, California.
Fox News has coverage of the controversy.
The first grader, identified as “B.B.,” drew the picture in 2021 after her teacher read to her class about the Rev. Martin Luther King Jr., according to the appeals brief. B.B. gave the picture to a classmate of color, identified as “M.C.,” because she felt bad for her.
M.C. took the drawing home. Her mother responded with an email to the school announcing that she would not tolerate more messages given to M.C. because of her skin color, and that she trusted that the issue would be addressed. She did not want B.B. punished, however.
The school principal told B.B. that the drawing was inappropriate, and she could not draw anymore, according to Carter’s opinion dismissing the case. It is unclear whether the principal also said the drawing was racist. The principal said B.B. should apologize to M.C.; B.B. did as she was told.
“When B.B. returned to class from recess, two of her teachers told her that she was not allowed to play at recess for the next two weeks,” according to the February decision.
B.B.’s mother, Chelsea Boyle, learned about the incident about a year later during a discussion with another parent. She filed an unsuccessful complaint with the school and then sued, alleging in part a First Amendment violation.
Carter ruled against B.B. and Boyle.
“This schoolyard dispute, like most, is not of constitutional proportions,” he wrote.
Carter distinguished Tinker v. Des Moines Independent Community School District, a 1969 U.S. Supreme Court decision holding that a high school could not ban students from wearing black arm bands to show opposition to the Vietnam War.
In the first grader’s case, age is a relevant factor, Carter said, citing a federal appellate decision that said an elementary school is not a “marketplace of ideas.”
“A parent might second-guess [the principal’s] conclusion, but his decision to discipline B.B. belongs to him, not the federal courts,” wrote Carter, an appointee of former President Bill Clinton.
Carter noted that B.B.’s drawing included a phrase similar to “All Lives Matter,” which he described as “a sentence with an inclusive denotation but one that is widely perceived as racially insensitive and belittling when directed at people of color.”
“Teachers are far better equipped than federal courts at identifying when speech crosses the line from harmless schoolyard banter to impermissible harassment,” Carter wrote.
B.B. and her mother are represented by the Pacific Legal Foundation, a nonprofit public interest law firm, according to a press release.
Its brief argued that the drawing did not cause disruption, and there was no basis for the school district to limit B.B.’s speech. And the age of the students should not matter, the brief said.
“Regardless of B.B.’s and M.C.’s ages, elementary school students possess First Amendment speech rights in school,” the brief said. The district court judge’s decision “erroneously cedes B.B.’s First Amendment rights to the whims of school officials.”
