One first-grader in California got in trouble at school for a drawing she did. This has led to a federal case that is looking into whether the First Amendment applies to first-grade classrooms.
In March 2021, the elementary school student, whose name was given in court documents as “B.B.,” drew a picture of several people of different races so that “three classmates and herself holding hands,” as the family’s lawsuit says. Above the picture, B.B. wrote “Black Lives Matter,” and below it, he copied the words “any life.”
Then B.B. gave the picture to a black classmate to try to make that classmate feel better, as she later said in court.
“Any life” sounds a lot like “All Lives Matter,” which became a heated response to the “Black Lives Matter” movement after George Floyd was killed in 2020.
Whether B.B. knew it or not, that likeness was going to get him into a lot of trouble. On the same day that B.B. made the drawing, Jesus Becerra, the school’s director, told her that it was “inappropriate” and, supposedly, “racist.” People involved don’t agree on whether Becerra told B.B. that the drawing was “racist.” The defense says that B.B.’s statements about the case are not reliable.
Because of what she did, B.B. had to say sorry to her friend and couldn’t draw anymore at school or go to recess for two weeks.
Reason looked at court records and found that B.B. and her mother, Chelsea Boyle, complained to the Capistrano Unified School District several times, saying that they were violating their First Amendment rights.
The Supreme Court has known for more than 100 years that children still have civil rights while they are in school, says Caleb Trotter, an attorney for the family who works for the Pacific Legal Foundation (PLF). “Just as a public school can’t punish a child for refusing to pledge to and salute the American flag, Capistrano Unified school officials could not punish B.B. for innocently straying from race-focused orthodoxy.”
The defendants were found not guilty in February of this year by district court judge David O. Carter, who said that the fact that the children were in first grade was “very important.” The ruling was put on hold for PLF, and the case will now be heard by the U.S. Court of Appeals for the 9th Circuit. Someone from PLF told Reason that the case is most likely going to be heard in person sometime in 2025.
Even though Judge Carter said that “B.B.’s intentions were innocent” in his summary judgment decision, he also said that the relevant Supreme Court case law, Tinker v. Des Moines Independent Community School District (1969), “does not focus on the speaker’s intentions.”
Instead, Tinker said that public schools are usually protected by the First Amendment, but it depends on each case whether the speech would “significantly interfere with the discipline needed for the school to function.”
The law in this area is “notoriously vague,” according to Barry McDonald, a professor of law at Pepperdine Caruso School of Law. “In the Tinker case, the Supreme Court asserted that student speech is protected unless it is substantially disruptive of the educational process or invades the rights of other students,” Reason reports. “The Supreme Court has never clarified what the latter phrase means, and lower courts have struggled to say what it means.”
Courts have had a hard time figuring out what the limits of educational speech rights are because of this lack of clarity. Did B.B.’s drawing make the class less quiet? As the Tinker case said, did it amount to “invasion of the rights of others”? What role does her age play in all this? And finally, and this may be the most important question, how much freedom should judges give schools to make these choices? When the case comes up again in 2025, the 9th Circuit will have to answer these and other questions. The lawyer for the PLF, Trotter, responded to Carter’s decision to give summary judgment last month by saying, “As ridiculous as this case is, if that decision is allowed to stand…it is a precedent.”
Someone from the Capistrano Unified School District said, “We are aware of the current media attention this matter.” “The District disputes the version of events being circulated in the media and we look forward to resolving this case through the proper legal channels.”