First-Graders and Free Speech

     Well, my lawyer friends had so much fun with my last piece, I thought I'd throw them another big juicy slab of red meat! I'm surprised they didn't serve you with a warrant, Boss! For what? For being annoying. I object! That's because you're an idiot. Can we move on, my litigious little friend? Let's... 

    So, a couple of years ago, a first-grader in California was punished for, get this, a drawing she made in school which resulted in a FEDERAL lawsuit that looks into whether the First Amendment extends to the first-grade classroom. Man, I was born 57-years too early!

    In March of 2021, the above mentioned elementary school student, who has been referenced in all the legal filings as "B.B.," drew a sketch in class depicting several individuals of different races, representing "three classmates and herself holding hands.” This, according to the family's complaint. Above the drawing, B.B. wrote "Black Lives Mater" [sic]. Aren't kids cute the way they spell things? Anyway, below the slogan, she added the words "any life." B.B. then gave the drawing to a classmate, who is black, in an attempt (as she later testified) to comfort her classmate. What could go wrong? Well, let me tell you.

    As most, if not all, of you know, the words "any life" are similar to the phrase "All Lives Matter," which became the slogan for some people as a response to the Black Lives Matter movement after the killing of George Floyd in 2020. That similarity would be the beginning of a roller-coaster and hot water for young B.B. The same day she created that drawing, she was told by the big, bad principal, Jesus Becerra, her drawing was "inappropriate" and, allegedly, "racist." (The parties dispute whether Becerra told B.B. that the drawing was "racist." The defense alleges that B.B.'s testimony on the subject is inconsistent.) Well, now. 

    B.B. was forced to apologize to her classmate, prohibited from drawing any more pictures in school, and prevented from going to recess for two weeks. Really? Are you kidding me?? Easy, Boss. Remember that movie with Tom Hanks where he wakes up one day and he's a young adult, becomes the hero of the toy company, and gets the girl? Well, I want to wake up a first-grader, draw a picture for a friend in need like B.B. did, and get a principal like this moron who takes away my recess and tell him to kiss my ass. I know, I know...this is the world we live in. But I don't have to like it, especially when they're treating some first-grader like she was drawing a "how-to” poster on destroying the White House. 

    Anyway, B.B. and her mother, Chelsea Boyle, filed a series of complaints against the Capistrano Unified School District alleging a First Amendment violation. Good for them. I mean, I'm on record saying how frighteningly too litigious our society has become. It's nuts. You can't open the newspaper or see something on television without some dope bragging how he or she hired a lawyer because someone coughed 15-yards in front of them without covering their mouth. Please...grow up. But we're talking about the First Amendment here; something rather important; one of our most, if not THE most, cherished right we have as citizens. So I’ll briefly be a hypocrite and say, “Bring on the lawyers.”

    "For more than 100 years, the Supreme Court has recognized that children retain their civil rights when in school," Caleb Trotter, an attorney for the Pacific Legal Foundation (PLF), which is representing the family, told reporters. "Just as a public school can't punish a child for refusing to pledge to and salute the American flag, Capistrano Unified school officials could not punish B.B. for innocently straying from race-focused orthodoxy."

    Earlier this year (2024), a district court judge, David O. Carter, ruled in favor of the defendants giving "great weight to the fact that the students involved were in first grade." That decision is on appeal and will be heard sometime in 2025 by the U.S. Court of Appeals for the 9th Circuit. The wheels of justice do indeed, grind slowly. Anyway, I'm betting that since the 9th Court is probably the most liberal court in these United States, this case will probably end up in the Supreme Court's docket. Sometimes the mind loses its capacity for shock and wonder. 

    Judge Carter also said that while, in his opinion, "B.B.'s intentions were innocent," he noted that the relevant Supreme Court case law, Tucker v. Des Moines Independent Community School District (1969) "does not focus on the speaker's intentions." It does not. Tinker says that each student free speech case turns on whether the speech in question would "significantly interfere with the discipline needed for the school to function." You see, The Supreme Court said, in Tinker, that student's free speech rights did not end when they entered the school. Students at the time were protesting the Viet Nam war, and at that time the school basically said, “You kids need to shut up.” So off to the Supreme Court they finally went, and the Supreme Court said to the school district, "No, you shut up. Free speech rules. Even for students. As long as it does not interfere with the discipline needed for the school to function. No substantial disruption." Now that's a simplified version of that very interesting moment in our history, and I'm sure my lawyer friends can be more eloquent on this topic. But I think I got the gist of it right. 

    Now, to be fair, all of that is pretty vague. And the Supreme Court has never really clarified or defined what the phrasing in Tucker means, and lower courts have struggled to say what it means. Did B.B.'s drawing disrupt the classroom to the extent that lack of discipline had run amok? Were the rights of others infringed upon? How much should her age factor into the equation? How much discretion should courts give schools to make these determinations? What exactly is a substantial disruption? Important questions, all. 

    But if I may...a first-grader drew a poster for a friend she felt needed an emotional boost. That, in and of itself, is pretty cool. She then wrote the words "Black Lives Mater" which she felt was important because her friend was black. That is also, really cool. She then wrote "Any Life" below the words "Black Lives Mater." Well, truer words were never spoken, because every life does indeed, matter. But let's remember that we are talking about first-graders. And at some point there was a Principal in the room masquerading as an adult. And maybe, just maybe, if Principal Becerra had not gone right for the proverbial guillotine on B.B., and maybe trying to make a name for himself with people of a certain outlook on social and racial issues, he could have sat down with these two kids, and even the entire class, and talked things through. Who knows? There might have been an opportunity for a genuine teaching moment. Alas, that did not happen. All B.B. will have been taught is the labyrinth that can be our judicial system.  

    So, while I'm glad the First Amendment is getting another chance to be defended in our courts...I hope I'm not alone in thinking that it didn't have to come to this. 

write to Peter: magtour@icloud.com