First Grade Orthodoxy

Rarely will there be a federal court opinion addressing the free speech rights of a first grader, mostly because most parents are sufficiently aware of the damage involving a child in a suit will cause and that the cost, whether financial or psychological, will end up being detrimental. But  subsequent circumstances compelled B.B.’s mother, Chelsea, to sue, only to learn that Central District of California Judge David Carter preferred the harm imposed by Capistrano Unified School District on an innocent and well-intended first grader to the pain suffered by a classmate’s mother.

A cleaned up recitation of the facts by Eugene Volokh,

When B.B. was in first grade, she made a drawing (the “Drawing”) that included the phrase “Black Lives Mater [sic]” printed in black marker. Beneath that sentence, B.B. added “any life,” in a lighter color marker. B.B. gave the Drawing to a classmate, M.C., who took it home. When M.C.’s mother saw the Drawing, she emailed the school, stating that she would not “tolerate any more messages given to [M.C.] at school because of her skin color” and that she “trust[ed]” the school would address the issue.

Later that day, the school’s principal, Becerra, approached B.B. at recess. Becerra told B.B. that the Drawing was “inappropriate” and “racist,” and that she was not allowed to draw anymore. {At the hearing, the parties disputed whether B.B. testified that Becerra told her the Drawing was racist. Although B.B.’s deposition is unclear, the Court must construe her testimony in the light most favorable to B.B.} He also instructed B.B. to apologize to M.C., which B.B. did twice.

When B.B. returned to class from recess, two of her teachers told her that she was not allowed to play at recess for the next two weeks. The teachers did not tell B.B. the reason she could not play at recess, and there is no direct evidence that Becerra directed B.B.’s teachers to punish B.B. in this way.

Notably, M.C. neither complained nor expressed any sense of offense. But her mother did, and that was enough for the principal to decide that it would be better to punish and damage a first grader than risk offending a mother of color. Whether Becerra agreed with M.C.s mother or acted to protect the school from the potential that the mother would take to social media and raise public outrage, perhaps even mostly peaceful protest, is unknown. What is known is that the principal, and teachers, had no qualms taking it out on first grader B.B.

And Judge Carter saw no problem.

Giving great weight to the fact that the students involved were in first grade, the Court concludes that the Drawing is not protected by the First Amendment. B.B. gave the Drawing to M.C., a student of color. The Drawing included a phrase similar to “All Lives Matter,” a sentence with an inclusive denotation but one that is widely perceived as racially insensitive and belittling when directed at people of color. Indeed, M.C.’s mother testified that those kinds of messages “hurt.” Soon after discovering the Drawing in M.C.’s backpack, M.C.’s mother emailed the school, and stated that she believed her daughter received the Drawing because of her race. Based on this email and the content of the Drawing, Becerra concluded that the Drawing interfered with the right of M.C., a first grader, “to be let alone.”

While it is certainly true that M.C., also a first grader, had a right “to be let alone,” M.C. neither had a problem with her classmate nor took offense at a drawing given her with good intentions by a classmate. Indeed, M.C. didn’t find the drawing to be sufficiently significant to show it to her mother, who found it in her backpack. To the extent there was anyone “hurt,” a word that has no legitimate application here, it was the mother. Nowhere in the law does B.B.’s action implicate the mother’s desire to find offense and demand that a school punish another first grader to assuage her racial anger.

Undoubtedly, B.B.’s intentions were innocent. B.B. testified that she gifted the Drawing to M.C. to make her feel comfortable after her class learned about Martin Luther King Jr. But Tinker does not focus on the speaker’s intentions. Rather, it examines the effects of speech on the learning environment and other students, giving deference to school officials’ assessments about what speech is acceptable in an educational setting. Such deference to schoolteachers is especially appropriate today, where, increasingly, what is harmful or innocent speech is in the eye of the beholder. Teachers are far better equipped than federal courts at identifying when speech crosses the line from harmless schoolyard banter to impermissible harassment. Here, Becerra concluded that the Drawing, although well-intentioned, fell on the latter side of that line.

While acknowledging that B.B.’s intentions were innocent, Judge Carter defers to the school’s “better equipped” judgment that the drawing crossed the line into “impermissible harassment.”  It’s understandable that a judge does not want to encourage making a federal case out of relatively petty school disciplinary decisions. At the same time, when schools embrace political orthodoxy and taken a parent’s offense out on a first grader, it would seem even more important that a judge would seek to discourage schools from allowing the “innocent” speech, that neither disrupted nor offended M.C., the only relevant party to the conduct, to be used as a cudgel in furtherance of political correctness.

Rather, the court’s view here seems to be that this viewpoint—simply because it “can be seen” as dissenting from what some see as the only proper response to racial problems—is stripped of First Amendment protection. The “Black Lives Matter” slogan is accepted as the one orthodoxy, and any perceived dissent from the view that black lives should be specially stressed in this context can be forbidden. Seems quite inconsistent with the Court’s conclusion that “In our system, state-operated schools may not be enclaves of totalitarianism.”

That these were young students for First Amendment analysis cuts both way. As Eugene notes, there is no caselaw that holds that first graders have lesser speech protections than high school students, or that the imposition of speech orthodoxy on first graders makes a school any less an “enclave of totalitarianism.” To the extent there was any legitimacy to the schools concern for the feelings of M.C.’s mother, what about the harm done to B.B. to mollify mom? Or does her life not matter?


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