The little girl referred to in court papers as “B.B.” was just trying to be nice to her friend. Their first grade class had been studying the Reverend Martin Luther King Jr., and B.B. wanted to make sure her friend, who is Black, felt comfortable. So seven-year-old B.B. made a drawing for her friend, who is identified as “M.C.” It showed four oval shapes in different colors and the words “Black Lives Mater” [sic] followed by “any life.” M.C. thanked B.B. for the gift.
When M.C.’s mother saw the drawing, she was taken aback. She emailed the school, Viejo Elementary in Orange County, California, to say she would not “tolerate any more messages given to [M.C.] at school because of her skin color,” adding that she trusted the school would address the issue. The mother’s reaction was reasonable; the school’s was not.
The school’s principal, Jesus Becerra, looked into the matter and reported back to M.C.’s parents. All agreed that B.B.’s motives were innocent. M.C.’s parents told Becerra that they did not want B.B. punished. Becerra did so anyway.
Pacific Legal Foundation
Drawing given by seven-year-old B.B. to her friend M.C. at Viejo Elementary in Orange County, California.
After purportedly telling B.B. that her drawing was “inappropriate” and “racist,” Becerra made her apologize to M.C., though neither she nor M.C. understood what she had done wrong. B.B. was also barred from recess for two weeks (“forced to sit on a bench and watch her classmates play without her”) and told she could not draw pictures for friends at school anymore.
B.B.’s mother, Chelsea Boyle, was never contacted by Viejo Elementary about any of this and only found out about it after a year had passed. She was appalled. She tried and failed to get an explanation or apology from the school, and she found the response to her internal complaint to be unsatisfactory.
So, in February 2023, Boyle filed a lawsuit against the Capistrano Unified School District. It alleges that B.B.’s First Amendment rights were violated and she was retaliated against for the content of her nondisruptive speech.
The case is important because of what happened next, in a federal court.
In February of this year, federal Judge David O. Carter of the Central District of California ruled that B.B.’s drawing was not protected speech under the First Amendment, specifically because she was in first grade. The ruling said an elementary school “is not a ‘marketplace of ideas’ ” and that “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 said there is plenty of room for parents to “second-guess” the principal’s behavior without concluding that he violated B.B.’s First Amendment rights. He argued that deference should be shown to educators in such situations: “Teachers are far better equipped than federal courts at identifying when speech crosses the line from harmless schoolyard banter to impermissible harassment.”
Yet Carter’s argument is obviously flawed: How can anyone contend that schools should be trusted to decide what is harmful, and what is not, when the school in this case failed to do so? It reacted to speech it didn’t like with punishment. If that’s not a problem, what is the point of having a First Amendment that prevents the government from “abridging the freedom of speech”?
The Pacific Legal Foundation, a conservative-leaning public interest law firm that says it “defends Americans’ liberties when threatened by government overreach and abuse,” got involved in the case. As the group states on its website, “To punish a first-grader for giving an innocuous drawing to a classmate that neither disrupted the school nor offended the classmate simply because of an imagined association of the drawing with alleged racist intent shows how deep the ideology of race essentialism has permeated. It didn’t matter that B.B.’s intentions were laudable; the school punished her for saying things that someone else might find offensive.”
In July, attorneys for PLF filed a brief asking a federal appellate court to review the ruling, which could very well end up before the U.S. Supreme Court. Caleb Trotter, an attorney for the firm, said he is worried that if Carter’s ruling is allowed to stand, “the speech rights of countless elementary students around the country could be at risk. That was what really concerned me.”
The courts will now get to decide whether a district judge in California overstepped. I believe they will, because he did.
In a landmark 1969 ruling known as Tinker v. Des Moines, the U.S. Supreme Court famously declared that neither students nor teachers “shed their Constitutional rights to freedom of speech or expression at the schoolhouse gate.” It found that students in junior high school and high school were wrongfully suspended for wearing black armbands to protest the Vietnam War, because this did not “materially disrupt” school activities or interfere with other students’ rights “to be let alone.”
Carter, in his ruling, contended that B.B. had, in fact, interfered with M.C.’s right to be let alone. The lawyers with PLF dispute this in their brief, saying the evidence “confirms that B.B.’s drawing was innocent and that her classmate, M.C., did not understand the drawing as anything other than a nice gesture.”
The brief also argues that the district court erred, as did Becerra, in conflating B.B.’s use of the term “any life” with “all lives matter,” a controversial response to “Black Lives Matter.” In fact, it noted, the two phrases “don’t even share a single word.”
Carter’s ruling contended that “ ‘students have the right to be free from speech’ that ‘denigrate[s] their race’ while at school,” which completely ignores the fact that B.B. did not denigrate anyone’s race and indeed had the exact opposite intent. The judge then wrapped up his ruling by noting that B.B. and M.C. remained friends after the incident, which had occurred three years earlier. “The drawing did not strain the friendship between them,” he wrote. “They have taught us an important lesson about moving on.”
Again, that’s self-contradictory. If the drawing caused no harm at the time it was made, nor afterward, why should a school principal—in the life of a child, the epitome of a government official—be able to punish her for making it?
Of course the case ended up on Fox News, with Boyle voicing her legitimate outrage: “It was heartbreaking, really, to realize that this is what schools and children are subjected to and what it’s come to.” She said her daughter was “irrevocably harmed” due to the treatment she had received, which ultimately prompted her family to leave California.
Yes, Fox News loves stories like this. Yes, it’s a boon for an outfit like the Pacific Legal Foundation, which trumpets on its website about the case: “The school’s massive overreaction to a young child’s innocent drawing reflects a worrying trend of race obsession in public education that’s contrary to fostering a truly inclusive school environment that values each student as an individual.”
But in this case, the group is right. There is no age limit on the First Amendment. The school did the wrong thing, and the courts should reach that conclusion, even if it requires the blessings of conservatives on the bench.
And Then There’s This . . .
Speaking of cases that test the outer limits of the First Amendment, a church in Castle Rock, Colorado, is suing the town for imposing zoning rules that bar it from using a recreational vehicle to provide emergency shelter to the homeless. The church, known as The Rock, says doing so is a religious activity directed by faith and hence protected under the First Amendment. As the case plays out in court, the church is being allowed to continue its humanitarian use of the RV.
Here, I think the town is wrong to not accommodate this initiative but also that the church’s argument is overreaching. Religious faith or membership does not entitle people to break the law. Consider, as a dramatic but real-life example, parents who allow their children to die rather than allow them access to life-saving medical care. The courts have not condoned this, nor should they.
Editor's note: This article has been corrected from the printed version of this story. It removes a reference to B.B. having to apologize to M.C. in front of about 150 others. While this claim was made in the original lawsuit complaint, it was later proved incorrect. Also, this version removes a mention to the Pacific Legal Foundation being involved in the initial lawsuit; the group got involved for an appeal. And it now correctly states that the case is before a federal, not state, appellate court.