Ninth Circuit revives first grader’s free speech case over ‘Black Lives Matter’ drawing

(CN) — The Ninth Circuit Court of Appeals ruled in favor of a first grader in Southern California whose mother claims her First Amendment rights were violated after she drew a racially themed picture and gave it to a fellow student at her elementary school.

The appeals court vacated a lower court’s summary judgment in favor of Viejo Elementary School Principal Jesus Becerra, writing that it incorrectly concluded the student’s drawing was not protected speech.

The issue stems from a 2021 incident in the Capistrano Unified School District, located in Orange County, California. A white first-grade girl, who is referred to under the pseudonym “B.B.,” drew a picture of different races getting along underneath the words “Black Lives Mater [sic] any life,” which she then gave to a Black classmate, “M.C.," according to B.B.’s mom Chelsea Boyle. Her daughter drew the picture after her teacher read the class a story about the Rev. Martin Luther King Jr.

M.C.’s mom complained about the drawing, noting that “while we can appreciate the sentiment of Black Lives Matter, my husband and I do not trust the place ‘any life’ is coming from.” Boyle says Becerra told B.B. the drawing was racist, banned her from recess for two weeks and forced her to apologize to M.C.

In a unanimous ruling, the Ninth Circuit judges disagreed that the picture was not protected under the First Amendment.

“Today’s ruling affirms what should be obvious: Students don’t lose their constitutional rights just because they’re young,” Caleb Trotter, senior attorney at Pacific Legal Foundation, said in a release published online. “The Constitution protects every student’s right to free expression. No child should be punished for expressing a well-intentioned message to a friend.”

Tuesday’s decision relied primarily on the landmark Supreme Court case Tinker v. Des Moines Independent Community School District, which found that high school students’ First Amendment rights allowed them to protest the Vietnam War.

“This case presents an important issue: to what extent is elementary students’ speech protected by the First Amendment?” the three-judge panel wrote in a per curiam opinion. “Applying the criteria set forth in Tinker v. Des Moines Independent Community School District, we hold that elementary students’ speech is protected by the First Amendment, the age of the students is a relevant factor under Tinker, and schools may restrict students’ speech only when the restriction is reasonably necessary to protect the safety and well-being of its students. Because the Tinker analysis raises genuine issues of material fact, we vacate the grant of summary judgment and remand.”

Under the Tinker decision, schools can only restrict speech if it interferes with students’ classwork of other students or their right to be let alone.

U.S. District Judge David Carter, a Bill Clinton appointee, initially ruled that the drawing interfered with the Black student’s right to be let alone — but also said B.B.’s actions were undoubtedly innocent. In his ruling, Carter wrote that the young age of the students was a factor.

“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,” Carter wrote.

Carter also wrote that Becerra’s actions following the drawing, whether right or wrong, did not warrant the intervention of federal court.

However, the Ninth Circuit took issue with these points, writing that there was conflicting evidence over whether Becerra could reasonably conclude the drawing interfered with the Black student’s right to be let alone.

“Disagreeing with the district court’s determination that the drawing was not protected by the First Amendment, the panel held that elementary students’ speech is protected by the First Amendment, Tinker applies in the elementary student speech context, and elementary students’ young age is a relevant, but non-dispositive, factor,” the panel wrote.

Four other circuit courts (Third, Fifth, Sixth and Seventh) have also concluded that elementary students’ free speech is protected under Tinker, the panel wrote.

“Although schools have comprehensive authority to ‘prescribe and control conduct’ in schools … when their actions infringe on a student’s First Amendment rights to expression, even for an elementary school student, the school has the burden of showing that its actions were reasonably undertaken to protect the safety and well-being of its students,” the judges wrote.

The opinion was written by U.S. Circuit Judges Consuelo Callahan, a George W. Bush appointee, and Roopali Desai and Ana de Alba, both Joe Biden appointees.

The ruling sends the case back to U.S. District Court for the Central District of California.

“Part of the frustration of this appeal is that it had to happen in the first place,” Trotter told Courthouse News. “I thought it was obvious that the district court was wrong about young elementary students having rights.”

The burden falls back to the school district to show how B.B.’s First Amendment rights interfered with M.C.’s learning, Trotter said.

“We’re very pleased,” he said. “The student and her family are very pleased that the Ninth Circuit has recognized there is something serious here and it deserves to be discussed.”

Attorneys for Becerra or the Capistrano Unified School District did not respond to requests for comment.