Ideological bias stripped one first-grader of her First Amendment rights
Does free speech have age restrictions? The Supreme Court says no. But one California judge ignored the Court’s landmark decisions and upheld a public school’s decision to punish a first-grader over a picture she drew in class. The student’s mother is now fighting back to protect her daughter’s right to free speech.
An innocent drawing
Seven-year-old B.B. was moved when her teacher taught the class about Martin Luther King, Jr. and the civil rights movement. It was during this lesson that she was first introduced to the phrase “Black Lives Matter.” The first-grader couldn’t fathom living in a world where people were treated differently based on the color of their skin. This made her think of her black classmate. She wanted this other little girl to feel welcome and decided to draw her a picture.
In big letters, B.B. wrote “Black Lives Mater [sic]” at the top of the piece of paper. Underneath, she drew four circles in different shades, representing her and three of her classmates holding hands. She also included the words “any life.”
The drawing was innocent. But the parents of the student to whom B.B. gave the picture had some concerns.
When the other girl’s parents saw the picture their daughter brought home, they were worried that she was being singled out for her race and called the school to gain a better understanding of the situation. While the girl’s parents had no intention of asking the school to punish B.B., that is exactly what happened when school administrators took matters into their own hands.
The principal confronted B.B. and explained that including the phrase “any life” in the drawing was “inappropriate” and “racist,” and he forced B.B. to apologize to her classmate. B.B. would also no longer be allowed to draw pictures in school. Worse still, the seven-year-old was not allowed to go to recess for two weeks. Instead, she had to sit and watch her friends play without her.
How an adult chooses to reprimand a child can have lasting implications that shape the child’s view of the world forever. In this case, B.B. learned how ideological radicalism can turn an innocent picture into an act of racism. And while she may not have understood it at the time, this incident also sent the very dangerous, and false, message that First Amendment rights don’t apply to children, especially when authority figures believe an act of expression goes against their own personal ideological views.
Imagine how confusing it must have been for B.B. to be punished for something she saw as an act of friendship. Scared of getting in more trouble if her parents found out, B.B. decided not to say a word.
Oddly enough, with all the drama that accompanied the incident, the school never once reached out to B.B.’s parents. An entire year would go by before B.B.’s mother, Chelsea, heard about the incident from a fellow parent.
Punishment doesn’t fit the ‘crime’
Chelsea could barely wrap her head around the situation. When she asked B.B. why she had kept the drawing a secret, B.B. told her that she thought the school would tell them.
Chelsea and her husband were not political people, and they certainly never pushed any specific narrative on their children. B.B. wasn’t even familiar with Black Lives Matter until she learned about it in school. Given the chaos all over the news during 2020, her parents did not think it was appropriate for B.B and her brother to be taught about ideologies they were not yet able to fully understand.
“We never talked about anything,” Chelsea says. “It was too big of a concept for a first- and second-grader to understand.”
The primary role of an educator is to teach children how to think critically about what they are taught. And if a school is going to teach its students about racism, it is essential to foster an environment where the kids can respond and engage with the topic. B.B. was doing just that, processing and expressing the emotions she was feeling about such a heavy topic. And instead of being encouraged in this, she was punished.
Chelsea wanted to know why she was never told about any of this. She went to the principal to find out why she was never informed about the drawing. The principal’s story kept changing. Frustrated, Chelsea asked that a neutral party investigate the matter. The district’s response to this request was to hand the matter over to the school, essentially giving the principal the job of investigating himself. Unsurprisingly, the school and the principal were cleared of any wrongdoing.
But the school doesn’t have the final say—because what it did to B.B. isn’t just inappropriate; it is also a violation of B.B.’s right to free speech.
Free speech for all ages
On the facts of this case, the First Amendment prohibits the school from punishing B.B. for freely expressing herself with her drawing.
Chelsea filed a lawsuit in the U.S. District Court for the Central District of California. In February 2024, shockingly, the court granted summary judgment to the school district, holding that B.B.’s First Amendment rights were not violated.
The district court did recognize that B.B.’s “intentions were innocent.” In fact, deposition testimony revealed that B.B.’s classmate was confused by B.B.’s apology for the drawing. There was also no evidence that the classmate was hurt or concerned over the drawing at all. Yet, the court inferred that the drawing was “directed at a ‘particularly vulnerable’ student” based on her race such that it received no First Amendment protection. The court drew that inference after “[g]iving great weight to the fact that the students involved were in first grade.”
The district court also noted the controversy surrounding the phrase “All Lives Matter” as supporting the school’s conclusion that B.B.’s innocent use of the phrase “any life” interfered with her classmate’s right “to be let alone.” This decision primarily relied on the age of the students to conclude that no First Amendment rights had been violated. In essence, this was the court’s way of saying that elementary school students did not have First Amendment rights.
A person’s age does not determine whether they are granted First Amendment rights, as the Supreme Court laid out as early as 1923 in Meyer v. Nebraska, confirmed in 1943 in West Virginia State Board of Education v. Barnette, and reaffirmed decades ago in the 1969 case of Tinker v. Des Moines—another case involving speech that was considered anti-patriotic.
In December 1965, as the Vietnam War waged on, 13-year-old Mary Beth Tinker organized a demonstration in which she and a group of fellow students would wear black armbands to school in protest of the war.
The school board caught wind of the demonstration and as soon as Mary Beth arrived at school, she was told to remove her armband and was promptly suspended, along with her brother John and another student, Chris Eckhardt.
The students were told they would not be permitted on school property until they removed their armbands. While they ultimately complied, they still felt compelled to express their anti-war beliefs. They returned without armbands, but that wasn’t the end of the matter.
They also filed a lawsuit on the grounds that the school district had violated the students’ right to freely express themselves, which would result in a four-year legal battle, eventually making it to the Supreme Court. The question at hand: whether minors in school had the right to free speech.
In a 7-2 decision, the Court ruled that students’ speech is most certainly protected by the First Amendment.
Justice Abe Fortas delivered the opinion of the Court, saying:
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students… are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.
As far as “constitutionally valid reasons” are concerned, for the school board’s punishment to be valid, it would have to prove that the acts would “materially and substantially interfere” with the other students’ learning.
In B.B.’s case, when the district court determined whether B.B’s drawing was either disruptive in school or interfered with her classmate’s rights, it wrongly decided B.B.’s age mitigated her First Amendment rights. The Tinker precedent clearly demonstrates that children have a constitutional right to express themselves.
Pacific Legal Foundation disagrees with the district court, so we’re helping Chelsea appeal and keep fighting for her daughter.
Lasting repercussions
The drawn-out legal battle has taken a serious toll on Chelsea’s entire family.
As rumors of the court case spread throughout the school, Chelsea received a wave of backlash from other parents and teachers. The situation got so bad that Chelsea transferred her two children to another school. But the rumors followed them. In the end, the routine harassment made Chelsea fear for her family’s safety. and she and her husband made the decision to completely uproot their lives and move to Florida.
As difficult as it has been to move across the country and rebuild their lives, Chelsea says she would do it all over again, not only for her own daughter, but for other children as well.
Chelsea was well aware of just how much the judge’s decision “would impact cases that are currently in litigation all over the United States for children and future litigation.” She continued, “I knew that I was the only one that could make the decision to do the appeal, and I wanted to leave this world a better place for my children, and I felt like I was going to leave it worse if I didn’t do it.”
For her, winning this case would mean “justice for my daughter, my family, but I also, I really, really hope that I give other parents some strength to do this and fight, and I will hold their hands. I’ll help them. I’ll do anything and everything to help other parents, because there was nobody for me.”
