From BB v. Capistrano Unified School Dist. (CD Cal.), decided last month but just published in Westlaw:
When BB was in first grade, he made a drawing (the “drawing”) that included the phrase “Black Lives Mater [sic]” printed in black marker. Below that phrase, BB added “any life,” with a lighter colored marker. BB gave the drawing to a classmate, MC, who took it home. When MC saw the drawing, sent an email to the school, stating that she would not “tolerate any more messages received [M.C.] at school because of the color of his skin” and who “he trusts[ed]”The school should address this issue.
Later that day, the school principal, Becerra, approached BB during recess. Becerra told BB that the drawing of her was “inappropriate” and “racist” and that she was no longer allowed to draw. At the hearing the parties disputed whether BB testified that Becerra told her that the Drawing was racist. Although BB’s testimony is unclear, the Court must interpret her testimony in the light most favorable to BB. He also instructed BB to apologize to MC, which BB did twice.
When BB returned to class from recess, two of her teachers told her that she would not be allowed to play during recess for the next two weeks. The teachers did not explain to her BB why she could not play during recess, and there is no direct evidence that Becerra ordered BB’s teachers to punish BB in this way….
Plaintiff [B.B.’s mother] claims that Becerra’s response to the drawing — forcing her to apologize to MC, prohibiting her from drawing any more pictures for her friends, and barring BB from playing at recess for two weeks — violates her First Amendment right to free speech. However, this school dispute, like most, is not of constitutional proportions.
While students do not “give up their constitutional rights to free speech or expression upon entering school,” their rights “are not automatically coextensive with the rights of adults in other contexts.” For school-age children, the First Amendment must be “applied in light of the unique characteristics of the school environment.” Because educators better understand these special characteristics, courts give “educators substantial deference as to what speech is appropriate.” “[T]The decision about what speech is inappropriate” at school “is properly up to the school board, rather than the federal courts.”
“Under Tinkering [v. Des Moines Indep. School Dist. (1969)]Schools may restrict speech that “could reasonably cause school authorities to anticipate substantial disruptions or material interference with school activities” or that conflicts “with the rights of other students to safety and exclusion.”
Much of the case law applies Tinkering focuses on its “substantive disruption” prong. Consequentially, “[t]the precise scope of Tinkering“interference with the language rights of others is unclear.” However, the cases reveal three principles that help identify when speech unduly violates the rights of other students in a way that is not protected by the First Amendment.
First, when the conversation is directed at a “particularly vulnerable” student based on a “key identifying characteristic,” such as race, gender, religion, or sexual orientation, educators have more leeway to adjust it. While speech that is “merely offensive to others” cannot be regulated, courts have recognized that disparagements based on protected characteristics do more than offend—they can inflict lasting psychological harm and interfere with the target student’s opportunity to learn. These types of denigration also have little compensatory benefit to the learning environment. Derogatory speech is therefore “not the conduct and speech that our education system is required to tolerate, as schools attempt to educate students about ‘habits and manners of civility’ or the ‘fundamental values necessary to maintain a political system democratic'”. As, “[w]hates the outer border of Tinkering‘s interference investigation,” the case law “establish[es] that students have the right to be free” from speech that “disparages.”[s] their race” while they were in school.
Second, the mere fact that the speech touches on a politically controversial topic is not enough to bring it under the protective umbrella of the First Amendment. In Harper, for example, the district court denied a preliminary injunction brought by a student who was told he could not wear a homophobic T-shirt to school. The Ninth Circuit affirmed the district court despite the “political disagreement over homosexuality” that existed at the time. At the same time, however, school administrators must have justification above “the mere desire to avoid the discomfort and unpleasantness that always accompanies an unpopular point of view” before they can regulate student speech.
Third, and most relevant to the present case, age is an important factor in deciding whether speech is protected. In Tinkering, the Court held that a high school could not prohibit students from wearing black armbands signaling opposition to the Vietnam War. The Court emphasized that denying students this type of expression – which interferes neither with the school environment nor with the rights of other students – can strain political orthodoxy and “strangle the free minds” of high school students. An elementary school, on the contrary, is not a “marketplace of ideas”. Therefore, the disadvantages of regulating speech are not as significant as they are in high schools, where students are approaching voting age and controversial speech could spark favorable conversations. As the Seventh Circuit recognized, elementary school “is more about learning to sit still and be polite, rather than intense debate.” To accomplish this mission, elementary schools need broad leeway to regulate student speech. In fact, “much, perhaps most, protected speech in the upper grades” can be regulated in elementary schools.
“The age of the targeted student is also relevant to the analysis.” Younger students may be more sensitive than older students, so their educational experience may be more affected when they receive messages based on a protected characteristic. In connection with this, first graders are impressionable. If more students join in the name-calling, the disruption could metastasize, affecting the learning opportunities of even more students….
Giving much weight to the fact that the students involved were first graders, the Court concludes that the Design is not protected by the First Amendment. BB gave the drawing to MC, a black student. The drawing included a phrase similar to “All Lives Matter,” a phrase with an inclusive denotation but which is widely perceived as racially insensitive and belittling when directed at people of color. In fact, MC’s mother testified that these types of messages “hurt.” Soon after discovering the drawing in MC’s backpack, MC’s mother sent an email to the school and stated that she believed her daughter had received the drawing because of her race. Based on this email and the contents of the Drawing, Becerra concluded that the Drawing interfered with the right of MC, a first grader, “to be left alone.”
The phrase “All Lives Matter” gained popularity in response to the growth of the Black Lives Matter (“BLM”) movement, a social movement protesting violence against Black individuals and communities, with a particular focus on police brutality. “All Lives Matter” can be seen as an offensive response to BLM because that phrase obscures “the fact that [B]missing are people who have not yet been included in the idea of ”all lives”.”
Undoubtedly BB’s intentions were innocent. BB testified that he gave her drawing to MC to make her feel good about her after her class learned about Martin Luther King Jr. But Tinkering it does not focus on the speaker’s intentions. Rather, it examines the effects of speech on the learning environment and other students, giving respect to school officials’ assessments of what speech is acceptable in an educational context. Such deference to teachers is especially appropriate today, where, increasingly, what is harmful or innocent is in the eye of the beholder. Teachers are much better equipped than federal courts to spot when speech crosses the line between harmless school jokes and impermissible harassment. Here Becerra concluded that the Design, while well intentioned, fell on the latter side of that line.
A parent might doubt Becerra’s conclusion, but his decision to discipline BB belongs to him, not the federal courts. Every day, elementary school teachers make thousands of disciplinary decisions in America’s schoolyards. Federal court review of all such decisions would unduly interfere with school administration and overwhelm the judiciary. Regardless of whether Becerra was right or wrong, the decision is his, and this school dispute – like most – does not justify federal court intervention.
This seems unconstitutional to me, even in first grade. It is debatable whether the First Amendment should apply to disciplinary decisions at K-12 schools (Judge Black, in his time, argued that it should not, and so did Justice Thomas more recently); it can also be debated whether it applies to lower ranks. But the courts have not so held, and the premise of this particular opinion appears to be that some first-grade speech, if approved by a federal court, would indeed be protected. (The standards set by the courts, according to which speech can be punished if it “materially disrupts classroom work,” set a much higher bar that appears to be on display here.)
Rather, the court’s view here appears to be that this view – simply because it “may be seen” as dissenting from what some see as the only adequate response to racial problems – is deprived of First Amendment protection. The slogan “Black Lives Matter” is accepted as the only orthodoxy and any perceived dissent from the view that black lives should be particularly emphasized in this context may be prohibited. It seems wholly inconsistent with the Court’s conclusion that “In our system, state-run schools may not be enclaves of totalitarianism.”