Ninth Circuit considers first grader’s free speech in ‘any life’ drawing case
Did a California school district violate the First Amendment when it punished a first grader for writing “Black Lives Mater [sic] … any life” on a drawing and giving it to a friend? That question was before the Ninth Circuit Court of Appeals in oral arguments this week.
Pacific Legal Foundation attorney Caleb Trotter argued the case of B.B. v. Capistrano Unified School District, in which PLF represents a young girl (“B.B.”) who was forced to apologize, banned from giving future drawings to classmates, and excluded from recess for two weeks over her innocuous drawing.
In a key exchange with the three-judge panel, the government’s attorney argued that B.B.’s drawing, made in response to the school’s lessons on Black Lives Matter, deserved less protection because of her age.
Government’s attorney: We are not dealing with first graders who are engaged in discussions in the marketplace of ideas. First graders are supposed to be learning to tie their shoes. They’re supposed to be learning—
Judge Callahan: Then you don’t give a Black Lives Matter course to a first grader. Maybe you teach tying shoes.
Here are other key quotes from the oral argument, and below you can watch the full video.
Caleb Trotter (PLF): There was absolutely nothing wrong with the principal investigating to find out what happened. What was the story behind this drawing? The problem arose when he punished B.B. solely for this speech that everyone, including Principal Becerra himself, has acknowledged was innocent.
Judge Callahan: I mean if you want to talk about Black Lives Matter with adults, intermediate school, or whatever, there are going to be discussions… So if you do that in first grade, isn’t it, I mean, all inferences are that her drawing was in response to what you introduced in the curriculum with six-year-olds, right?
Government’s attorney: The evidence is that Black Lives Matter was what was taught. All lives or all lives matter was not within the curriculum, not taught. BB even testified that that was something that wasn’t taught.
Judge Callahan: The parent of the African American child said, I don’t want to really make a big deal of it. I just don’t. But the school on the other hand, someone thought, well, I know better than anyone else and I need to tell this child that they’ve made a racist and inappropriate statement in their drawing. That’s not Tinker. That’s someone at a school saying, well, I have the answer for this here and I’m going to tell you your drawing is racist and inappropriate. And why isn’t that just over the top?
Judge Callahan: I would not want my first grader who had a friend that was African American and was trying to make her friend feel better called by, told that what she did was racist and inappropriate because that’s how that teacher would’ve talked to her kid.
Judge Callahan: I’m going to tell you, there’d be parents that would be just as irate as B.B.’s mother that are going to be sitting on your jury… It’s not as slam dunk as the school would like to say.
Caleb Trotter (PLF): In Karp v. Becken, this court said that punishing students for speech is only permissible if the student has violated some law or school policy. No one has contended that BB did either of those. In contrast, Principal Becerra violated the school policy in punishing her for her speech.
