A California appeals court backed a child who wrote “any life” and innocently drew the thumbprints of her friends under “Black Lives Matter” in a picture at school, which she was later punished for.
A lower court previously backed the child’s school principal, Jesus Becerra, who worked at Viejo Elementary School in Mission Viejo, California.
The child, who is white and identified as “B.B.” in court documents, in 2021 drew the picture and gave it to a black classmate, “M.C.,” after the class listened to a story about the Rev. Martin Luther King Jr.
The black child then took the latter child took the picture home where M.C.’s mother raised concerns with the school. B.B.’s mom, Chelsea Boyle, alleges Becerra told B.B. that the drawing was racist, forced her to apologize to M.C., and banned her from recess for two weeks.
B.B.’s drawing, which says “Black Lives Matter, any lives.” U.S. Court of Appeals for the 9th Circuit,
Boyle later filed suit against the school, alleging B.B.’s First Amendment rights were violated.
The lower court disagreed, concluding the drawing was not protected speech and interfered with the black student’s right to be let alone.
But the higher court, using the landmark Tinker v. Des Moines Independent Community School District case that established that high school students have the right to protest the Vietnam War, decided to vacate the decision.
“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,” they added.
The lower court judge, U.S. District Judge David Carter, a Bill Clinton appointee, argued that age was a factor in his decision.
“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.
The Ninth Court of Appeals. AP
But the higher court said age is a relevant but “non-dispositive” factor.
“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.
Boyle celebrated the higher court’s decision.
“This isn’t just a win for my daughter. It strengthens constitutional protections for students across the country,” she wrote in an Instagram post.
“Turns out…The Constitution doesn’t have an age limit,” she added.
Her attorneys followed suit.
“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.”
The case will now go back to the U.S. District Court for the Central District of California, per Courthouse News.