A federal appeals court has ruled that First Amendment free speech rights apply all the way down to first graders, as the judges weighed in on a tricky case involving a student who wrote a note to a Black classmate trying to say “all lives matter.”
The girl said the school principal deemed the note racist and inappropriate and gave her a talking to, ordering her to stop giving notes to classmates. The youngster also said she faced a two-week ban on recess.
The parents of the 7-year-old, identified in court documents by the initials BB, sued. They lost in the lower court after a federal district judge tossed their lawsuit, saying the First Amendment didn’t apply to students so young.
But the 9th U.S. Circuit Court of Appeals on Tuesday said first graders do, in fact, have some free speech rights. The appeals court sent the case back for more arguments to determine what happened and whether the school crossed any lines.
“In sum, elementary students’ speech is protected by the First Amendment,” the three-judge panel said in an unsigned opinion. The judges included two Biden picks and one George W. Bush appointee.
BB was a student at California’s Viejo Elementary School in 2021 when she made the note, with a drawing of four oval shapes, in colors ranging from orange to brown, which she said were her friends holding hands. Above that, she wrote “Black Lives Mater,” then wrote “any life.” She gave it to her classmate, another girl identified in court documents as MC.
BB said she didn’t know what Black Lives Matter meant but wrote it because it was part of a book her teacher had read, and she’d seen a picture of a man with a raised fist and the slogan “Black lives matters” in one room at school.
She said she wrote “any life” because “all lives matter” — a phrase that those behind the Black Lives Matter movement deemed offensive.
According to the facts presented in the case, MC thanked BB for the drawing and didn’t take offense.
But when she took the drawing home, her mother found it and fired off a complaint to the school’s principal, Jesus Becerra, saying she was dismayed her Black daughter had been singled out by a classmate.
“My husband and I will not tolerate any more messages given to our daughter because of her skin color,” the mother wrote. “As the administrator we trust you know the actions that need to be taken to address this issue.”
Mr. Becerra then confronted BB. In her version, he told her the drawing was “not appropriate” and “racist.”
He denies that, and also denies meting out any punishment.
BB’s parents found out about the incident nearly a year later, apparently after a brief exchange with MC’s mother. They filed a complaint with the Capistrano Unified School District in 2023, then sued in federal court in California.
U.S. District Judge David O. Carter said he didn’t question the girl’s intentions, but said her drawing trampled on her classmate’s right to be left alone in school. And since he concluded BB didn’t have free speech rights, the issue was a matter left to the school and “does not warrant federal court intervention.”
He granted summary judgment to Mr. Becerra.
The appeals court disagreed, saying schools must comply with constitutional limits, and they include speech by first graders. The court said a 1969 Supreme Court case, Tinker v. Des Moines Independent Community School District, lays out how schools are supposed to work through the issues.
“Age is relevant as younger students are more vulnerable than students who are approaching adulthood. But, as all students, including elementary school students, have First Amendment rights, the school has the burden, under the Tinker balancing test, of showing that its actions were reasonably undertaken to protect the safety and well-being of its students,” the court ruled.
The appellate judges said it is now up to the lower court to decide whether Mr. Becerra’s actions were justified or too dramatic.
Mr. Becerra disputes that he called the note inappropriate or racist, and the school denies that BB was barred from recess. If those are true, then BB wasn’t punished and her case would still fail, the court said.
The Pacific Legal Foundation argued the case for BB’s family, and it hailed the decision.
“The First Amendment requires schools to meet a demanding standard before punishing student speech,” said Caleb Trotter, the PLF lawyer on the case. “The court made clear that schools cannot simply label a child’s message inappropriate and impose discipline without showing that punishment was necessary to prevent disruption.”
The Washington Times has sought comment from the school district.
In its arguments in court, the school system suggested BB’s family was seeking public attention.
It said there was no evidence BB was punished, and no record of her missing any recess over the incident, even though school documents did record other times when she missed recess as a consequence for other incidents.
