According to Just The News, the case stemmed from a female student – identified as B.B. in the lawsuit – who felt bad for her minority classmate after a lesson on Martin Luther King Jr. and Black Lives Matter. B.B. drew a picture for that classmate to help them feel more included.
The picture was captioned "Black Lives Matter" above the phrase "Any Life," with a picture of four circles of different colors beneath the text. According to B.B., the circles represented her and three classmates holding hands. The minority classmate thanked B.B. for her drawing and took it home.
But the minority classmate's mother ostensibly saw malice in the otherwise innocent drawing. The mother reported the drawing to Jesus Becerra, principal of the Viejo Elementary School in California's Capistrano Unified School District (CUSD) where both students were enrolled. She expressed "concern that her daughter was being singled out for her race."
While acknowledging that B.B.'s motives were innocent, Becerra was quick to conclude that writing "any life" was "inconsistent with values taught in the school." He also declared the drawing "racist" and "inappropriate" and swiftly punished B.B., despite the minority classmate's parents also acknowledging the drawing's innocent motive and wanting no punishment for her.
B.B.'s mother Chelsea Boyle learned of the punishment a year later and requested an explanation and an apology from the school. She then sued CUSD, Becerra and CUSD counselor Cleo Victa. In turn, the school district claimed the principal was operating under qualified immunity against the author’s First Amendment and retaliation claims.
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But U.S. District Judge David Carter, who was appointed by former President Bill Clinton, ruled in favor of the defendants. According to his decision, first-grade students are not protected by the First Amendment.
B.B.'s mother appeals Carter's ruling
"Giving great weight to the fact that the students involved were in [the] first grade, the court concludes that the drawing is not protected by the First Amendment," Carter wrote in his decision. He cited a U.S. Supreme Court ruling stating that "schools may restrict speech that 'might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities' or that collides 'with the rights of other students to be secure and let alone.'"
The magistrate added that the phrase "any life" was close to the phrase "All Lives Matter," which he said is "an inclusive denotation but one that is widely perceived as racially insensitive and belittling when directed at people of color."
But Boyle wasn't satisfied with the ruling, approaching the Pacific Legal Foundation (PLF) for help in filing an appeal – which was filed on July 15 in the Ninth Circuit Court of Appeals.
According to the appeal, Becerra's punishment of B.B. counts as retaliation for actions protected under the First Amendment. It also argued that her speech and that of other first-graders are protected under the U.S. Supreme Court's ruling on the Tinker v. Des Moines Independent Community School District case. The 1969 decision states that "First Amendment rights … are available to teachers and students [and they don't] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (Related: First Amendment victory: Schools may no longer police students' social media posts.)
Moreover, PLF's appeal said the lower court incorrectly found that B.B.'s speech fell under the exemptions for speech at school outlined in the Tinker decision – in particular speech that infringes on another student’s right to be left alone with regards to bullying or causes "substantial disruption." According to Just The News, the appeal lodged by B.B.'s mother now awaits a hearing and ruling from the appellate court, which should occur within a year.
Check out FirstAmendment.news for similar stories.
Watch this segment from InfoWars about how free speech protected under the First Amendment is under attack.
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