A California 7-year-old was banned from drawing pictures at school and forced to sit out recess for two weeks for adding “any life” below Black Lives Matter on a picture she drew and gave to a Black friend, punishments that led to a federal lawsuit.
At the core of the case, which could see its way to the Supreme Court, is a simple question: Do first graders have First Amendment rights?
The parents of the student filed the lawsuit in 2023 against the Capistrano Unified School District, in Orange County, where the incident occurred. So far, the district has prevailed, with a U.S. District Court judge in February deferring to the principal and teachers’ authority and basing his ruling on a lack of free speech rights for children so young.
The case is now headed to the 9th Circuit Court of Appeals, where an attorney for the Pacific Legal Foundation filed a challenge this week, arguing it would set a dangerous precedent for elementary students in every corner of the country.
“The whole situation was nuts,” said the attorney, Caleb Trotter, citing the first grader’s punishment for the drawing. But it was his concern over the judge’s ruling that worried him more, a legal opinion he summed up as, “Well, they’re really young, so they have no First Amendment rights.”
“As absurd as this case is, if that decision is allowed to stand… it is a precedent,” he said. “If that view is allowed to survive and spread, the speech rights of countless elementary students around the country could be at risk. That was what really concerned me.”
District officials declined to comment, citing pending litigation.
The case exemplifies an ongoing battle in schools across the country over racial politics and how it plays out in public school classrooms, although rarely does it involve students who still have all their baby teeth.
What happened at Viejo Elementary School three years ago is undisputed. The student, identified as B.B., drew the picture, which also included four colored-in ovals representing herself and three friends, after a lesson on Martin Luther King, Jr., and gave it to her friend, M.C., who took it home, where her mother saw it.
The mother emailed the school, saying she wouldn’t “tolerate any more messages given to M.C. at school because of her skin color” and that she ‘trust(ed)’ the school would address the issue,” according to court records.
The principal confronted B.B. and told her the drawing was “inappropriate” and “racist” and that she couldn’t draw at school anymore and had to apologize to her friend. When she returned to class, her teachers told her she was not allowed to play at recess for two weeks.
A year after the incident, B.B.’s mother learned of her punishments and later sued the school district and administrators, claiming her daughter’s First Amendment rights were violated. She lost in the district court.
U.S. Central District Court Judge David Carter acknowledged that M.C.’s parents didn’t want B.B. punished and that neither student understood why B.B. was apologizing.
“Undoubtedly, B.B.’s intentions were innocent,” Carter said in ruling for the district. “B.B. testified that she gifted the Drawing to M.C. to make her feel comfortable after her class learned about Martin Luther King Jr.”
Yet the judge concluded the drawing was not protected by the First Amendment.
“Students have the right to be free from speech that denigrates their race while at school,” he wrote in the ruling.
In addition, and “most pertinent to the case,” according to the judge, was B.B.’s age.
“An elementary school … is not a marketplace of ideas,” he wrote. “Thus, the downsides of regulating speech there is not as significant as it is in high schools, where students are approaching voting age and controversial speech could spark conducive conversation.”
As for the punishment, “a parent might second-guess (the principal’s) conclusion, but his decision to discipline B.B. belongs to him, not the federal courts.”
Trotter said he believes the judge erred in the fact that the drawing was not disruptive and then relied on a New York Times article, which was not part of the case record, to deem the “any life” part of the drawing as offensive, associating it with the “all lives matter” controversy.
“Testimony in this case clearly shows neither student knew any of what this meant,” Trotter said. “The school created this situation by introducing these adult topics.”
Trotter said if the 9th Circuit sides with the district, he would consider appealing to the Supreme Court. A decision is expected in about a year.
Carter had a different take in his ruling.
“B.B. and M.C. have undoubtedly moved on from this incident that occurred three years ago. B.B. stated that the Drawing did not strain the friendship between them,” he said. They have taught us an important lesson about moving on.”
Unbelievable. Two weeks of no recess, which means no hanging with friends, no fun n’ games, and no exercise, is an ETERNITY for a little 7-year-old—and just for speaking the simple TRUTH?? What this nasty teacher did is patently racist and straight-up Cultural Marxist BLM and Critical Race Theory political indoctrination. Of COURSE all lives matter, you morons! And does the judge actually think there’s some QUESTION as to whether young people have a right to free speech?? If anything, knowing freedom of speech is even MORE important for a child to learn than for an adult. The extreme Left has captured virtually ALL of America’s K-12 education, and I pity parents with young children trying to find a decent school.
I think it is the Most Ridiculous thing I have read recently. How are you to train children when they should be trained from birth on up there’s no such thing as limiting children’s speech unless they are being violent or horribly nasty in their language. This is not anything like that. I think the courts should remand take back what they said.
ALL SCHOOLS SHOULD BE A MARKET PLACE OF IDEAS! THIS IS HOW YOU LEARN TO THINK! HOW CAN YOU TEACH KIDS ABOUT THE FIRST AMENDMENT AND THEN TELL THEM WHAT TO THINK & SAY? THIS IS THE GOVERNMENT AGENDA TO PROGRAM OUR KIDS.” A GOOD CITIZEN SUPPORTS AND FOLLOWS WHAT THE GOVERNMENT TELLS THEM” IS WHAT THEY ARE TEACHING. INSTEAD IT SHOULD BE TO QUESTION EVERYTHING.
They will get away with it , until they are stopped.