YOU’VE got to be 16 to drive, 17 to enlist in the military, 18 to vote. Is there also a minimum age for First Amendment protection?
After a 7-year-old girl was punished for giving a friend a drawing that her school principal allegedly deemed “racist,” that question is now before the San Francisco-based 9th US Circuit Court of Appeals. It’s being litigated by the libertarian-leaning Pacific Legal Foundation and has already attracted interest from conservative free-speech advocates.
The Constitution “does not limit its free-speech guarantee to those who have completed fourth or fifth or sixth grade,” as one friend of the court brief filed last week put it.
The case began in 2021, when a then-first grader identified in court papers as “B.B.” at Viejo Elementary School in Orange County, California, made a drawing for a friend.
B.B.’s teacher had just read the class a book about Martin Luther King, Jr. that also introduced the phrase “Black Lives Matter,” according to lead plaintiffs counsel Caleb Trotter of the non-profit Pacific Legal Foundation, or PLF, which is handling the appeal for free.
To make the classmate “feel included,” Trotter and PLF co-counsel Wilson Freeman wrote in their opening appellate brief, B.B. drew her a picture of four ovals in different shades to represent friends. Above the circles, B.B. wrote “Black lives mater” (sic), and underneath, “Any life.”
The friend took the drawing home, where her mother found it in her backpack and fired off an email to the principal. “My husband and I will not tolerate any more messages given to our daughter at school because of her skin color,” she wrote.
B.B.’s intent is not at issue. All parties agree she was oblivious to the wider controversy surrounding the “All lives matter” slogan as a response to the Black Lives Matter movement.
Nonetheless, the principal scolded B.B., telling her the drawing was inappropriate and directing her to apologize to the classmate — which she did, twice, though the children said they were confused about what the apology was for, according to PLF’s brief.
B.B. also alleged her teachers made her sit out of recess for two weeks and that she was told not to make drawings anymore.
Her mother sued the school district last year for violating her daughter’s First Amendment rights, only to lose on summary judgment. She reached out to PLF – which last year won three cases before the US Supreme Court – to handle the appeal, according to Trotter, who said the constitutional issues made it “a good fit for us.”
Superintendent Christopher Brown, principal Jesus Becerra and lawyers for Capistrano Unified School District from Hylton & Associates did not respond to requests for comment.
While courts across the country have routinely upheld free speech rights (with some limitations) for middle and high school students, what sets this case apart is the age of the children.
“There are a dearth of cases dealing with elementary school students,” Trotter told me.
That’s probably because most 7-year-olds in my experience are more interested in ponies or Legos or what the tooth fairy pays for an incisor than making political statements. Still, plaintiffs’ counsel makes a compelling case that protecting the rights of children, even first graders, to think critically and express unpopular opinions is vital to their education and our society.
The school district lawyers counter that the principal’s actions are permitted under a 1969 US Supreme Court decision, Tinker v. Des Moines, that involved students aged 13 to 16 who wore black armbands at school as a silent protest against the Vietnam War.
The high court held that while students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” this freedom may be abridged if the speech interferes with school activities or the rights of others.
Here, the Viejo Elementary lawyers said, the principal reasonably viewed the drawing as a disruption to the educational experience of the student who received it.
In dismissing the case in February, US District Judge David Carter in Santa Ana agreed, writing that the decision to discipline B.B. belonged to the principal, not the federal courts.
He also ruled that age was an important factor in determining B.B.’s speech did not merit protection. Unlike high school, where students are approaching voting age, an elementary school is not the place for robust debate of hot-button topics, he said.
Instead, primary education is “more about learning to sit still and be polite,” Carter wrote, quoting a 1996 decision by the Seventh Circuit in a case involving a fourth-grader who wanted to hand out invitations to a religious meeting at school.
But Trotter and the amici, which include the Manhattan Institute, the Southeastern Legal Foundation, Parents Defending Education and the Center for American Liberty, say schools should do better, with some also complaining that public schools are overly-focused on “social justice orthodoxy,” as the California Policy Center and Californians for Equal Rights Foundation put it.
