The free speech rights of first graders are at the center of an ongoing legal fight in California.
In aMarch 10 opinion, a panel of the 9th U.S. Circuit Court of Appeals threw out a lower court's previous ruling in favor of a school district accused of violating a student's First Amendment rights by punishing her for a Black Lives Matter drawing. The decision sends the case back down to the district court for further legal proceedings.
The student at Viejo Elementary School in Mission Viejo, California, identified only as B.B. in court documents, gave the drawing to an African American classmate, identified as M.C., after a class reading about the Rev. Martin Luther King Jr. in 2021, the court said in its opinion.
B.B. "felt bad" that "black people ... were put in a worse position," the opinion said. The drawing depicted "all her friends holding hands" along with the words "Black Lives Mater (sic) any life."
"B.B. did not know that 'Black Lives Matter' had any particular meaning but included the phrase because it was at the end of the book her teacher read to the class," the court said.
M.C.'s parent complained to Principal Jesus Becerra, saying that "while we can appreciate the sentiment of Black Lives Matter, my husband and I do not trust the place where the 'any life' is coming from."
In response, Becerra "allegedly told her (B.B.) that the picture was inappropriate and racist" and prompted her to apologize to the other student, the opinion said. B.B. testified that her recess was taken away for two weeks over the incident, though Becerra denied that any such punishment took place and that he described the drawing in that manner.
B.B.'s mother was unaware of the matter until nearly a year later, which eventually led to a lawsuit against Becerra and the Capistrano Unified School District. The complaint, filed in U.S. District Court for the Central District of California, alleged that Becerra violated B.B.'s First Amendment rights.
The district court determined the drawing was not protected speech under the First Amendment and that teachers "are far better equipped than federal courts at identifying when speech crosses the line from harmless schoolyard banter to impermissible harassment," the opinion said.
The court grantedsummary judgment, a ruling without a full trial, in favor of the school district.
The appeals court said the lower court made a mistake in doing so, citing the "conflicting evidence about whether Becerra could reasonably conclude that the drawing interfered with M.C.'s rights and whether the actions taken were reasonably necessary."
Caleb Trotter, senior attorney at the Pacific Legal Foundation, which is representing B.B. and her mother, said they were "thrilled" with the decision but that it's "somewhat frustrating" the matter had to be litigated in the first place.
That sentiment was echoed by several First Amendment advocates in interviews with USA TODAY.
"When people say, 'don't make a federal case about this,' this is the kind of thing they're talking about not making a federal case out of," saidAdam Goldstein, vice president of strategic initiatives at the Foundation for Individual Rights and Expression.
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USA TODAY reached out to the school district and its legal counsel for comment.
Court, experts say age is a relevant factor in student speech cases
The appeals court said the district court had misappliedTinker v. Des Moines Independent Community School District, a 1969U.S. Supreme Courtopinion that said a public school could not bar students from wearing black armbands to protest the Vietnam War under the First Amendment. The opinion famously said neither teachers nor students "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
It has since become the "lodestar for student speech," National Coalition Against Censorship Executive DirectorLee Rowlandsaid.
"In sum, 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 factor," the panel said.
Though First Amendment rights are not dependent on age, whether a form of expression violates another person's rights can depend on the ages of those involved, saidDavid Snyder, executive director of the First Amendment Coalition, a California-based free speech group.
"Verbal insults have much different effects on someone 7 years old than on someone who's 17 years old or 18 years old," he said.
Though the school had "broader discretion" because of the young ages of the students involved, the 9th circuit panel said, "it does not relieve the school and Becerra from meeting their burden of showing that their actions were reasonably undertaken to protect the safety and well-being of the school's students."
'Don't react to the loudest voice in the room'
The matter reflects a broader trend Rowland said her organization has seen in recent years, which is student speech echoing political polarization among adults.
"It is rough and tumble, it is sometimes inappropriate ... and sometimes that environment gets replicated in schools," Rowland said.
The school's alleged action against B.B. came in response to a parent complaint, which demonstrates what Goldstein described as school officials' "tendency to want to appease people who are upset" over such speech. Knee-jerk reactions, however, can lead to unconstitutional actions, he said.
"The advice would be, don't react to the loudest voice in the room," Goldstein said. "Stop and consider the rights of students before deciding how to react."
Though the issue has likely been "challenging" for those involved, Trotter said B.B.'s family has "used it as an opportunity to teach B.B. and the rest of their family about the importance of standing up for one's rights."
BrieAnna Frank is a First Amendment reporter at USA TODAY. Reach her atbjfrank@usatoday.com.
USA TODAY's coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners.Funders do not provide editorial input.
This article originally appeared on USA TODAY:First graders' free speech rights at center of revived lawsuit
