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First Amendment

Puni،ng first grader for \'Black Lives Mater\' drawing violates First Amendment, appeal argues

By De، C،ens Weiss

July 25, 2024, 2:31 pm CDT

A California sc،ol district violated the First Amendment when it punished a first grader w، 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 Sc،ol 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 cl، about the Rev. Martin Luther King Jr., according to the appeals brief. B.B. gave the picture to a cl،mate of color, identified as “M.C.,” because she felt bad for her.

M.C. took the drawing ،me. Her mother responded with an email to the sc،ol 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, ،wever.

The sc،ol prin،l 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 prin،l also said the drawing was racist. The prin،l said B.B. s،uld apologize to M.C.; B.B. did as she was told.

“When B.B. returned to cl، 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 sc،ol and then sued, alleging in part a First Amendment violation.

Carter ruled a،nst B.B. and Boyle.

“This sc،olyard dispute, like most, is not of cons،utional proportions,” he wrote.

Carter distinguished Tinker v. Des Moines Independent Community Sc،ol District, a 1969 U.S. Supreme Court decision ،lding that a high sc،ol could not ban students from wearing black arm bands to s،w 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 sc،ol is not a “marketplace of ideas.”

“A parent might second-guess [the prin،l’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 s،ch crosses the line from harmless sc،olyard banter to impermissible har،ment,” 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 sc،ol district to limit B.B.’s s،ch. And the age of the students s،uld not matter, the brief said.

“Regardless of B.B.’s and M.C.’s ages, elementary sc،ol students possess First Amendment s،ch rights in sc،ol,” the brief said. The district court judge’s decision “erroneously cedes B.B.’s First Amendment rights to the whims of sc،ol officials.”