Judges school lower court on first grader free speech

Everyone agrees that the little girl meant no harm. But when the girl—a first grader known in court documents as B.B.—drew a picture that included the slightly misspelled words “Black Lives Mater any life” and gave it to M.C., a black classmate, it ignited a free speech controversy. Five years later, it’s still not over.

Chelsea Boyle, B.B.’s mother, sued in 2023, claiming that officials at Viejo Elementary School punished her daughter for her drawing after M.C.’s mother complained. The K-5 school is in Mission Viejo, Calif., in Orange County’s Capistrano Unified School District.

On Tuesday, a federal appeals court panel revived the lawsuit, finding that the child’s California elementary school may have violated B.B.’s free speech right. In an unsigned and unanimous opinion, the 9th U.S. Circuit Court of Appeals rejected the U.S. District Court’s 2024 decision and ruled that the elementary student’s speech was protected by the First Amendment.

The ruling stands as an important affirmation of students’—even very young students’—free speech rights, said Caleb Trotter, senior attorney at Pacific Legal Foundation, who represented Boyle and B.B. “The Constitution protects every student’s right to free expression,” said Trotter. “No child should be punished for expressing a well-intentioned message to a friend.”

Important facts in the case remain in dispute. Since accounts of the incident by B.B. and school authorities sharply differed, the appeals court could not determine the impact of the drawing on M.C.—whether it invaded her rights by aiming derogatory remarks at her because of her race. Nor could the court determine whether B.B. was punished for sharing the drawing.

According to the appeals court, there was evidence that M.C. was unaffected by the drawing, not understanding that there was any negative connotation to its language. The court also noted evidence that 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. She said she included the phrase “any life” in her drawing because “all lives matter.”

M.C.’s mother, who emailed the school about her concerns, interpreted the events differently. She testified that her daughter “does not go to school to be judged because she’s a black girl.” She emailed Principal Jesus Becerra to tell him she would “not tolerate any more messages given to [M.C.] at school because of her skin color.”

Also in dispute was whether B.B. was punished for sharing the drawing. B.B. said that Becerra told her that the drawing was “inappropriate” or “racist,” but Becerra denies this. B.B. also said that her teachers told her she could not play at recess in the weeks after the incident, but Becerra denies any involvement in this.

Still, the circuit court’s three-judge panel had enough information to rule in favor of B.B. this week. In reaching its decision, the panel looked to a two-part test the U.S. Supreme Court set out in Tinker v. Des Moines Independent Community School District, a 1969 case that came at the height of the anti-war movement. In Tinker, three Des Moines, Iowa, students were suspended after they wore black armbands to school in violation of school policy. They filed a lawsuit that asked a federal court to block the policy because it violated their First Amendment right to free speech.

Although the school district initially won in lower courts, the Supreme Court ultimately ruled in favor of the students, saying they were entitled to free expression of their views unless there is evidence that it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”

On Tuesday, the 9th Circuit panel said that the First Amendment protects the expression of elementary-age school children just as it protects the free expression of the high school students in Tinker. And while the more impressionable age of the students may be a relevant factor, it is only one factor in determining if a free speech right is violated.

“The school has the burden of showing that its interference with a student’s First Amendment right was reasonably necessary to protect ‘the safety and well-being’ of its students … including their rights ‘to be secure and to be let alone,’” the court said in its ruling, describing the first prong of the Tinker test. The panel also found that schools may regulate student speech under Tinker’s second prong—“invasion of the rights of others”—when it involves “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.”

In 2024, the 1st U.S. Circuit Court of Appeals relied on Tinker to turn away a student’s free speech case. Liam Morrison claimed his Massachusetts school violated his free speech rights when it sent him home for wearing a T-shirt with the words “There Are Only Two Genders.” The U.S. Supreme Court declined to review the case, but Justices Samuel Alito and Clarence Thomas, also citing Tinker, said they would have done so.

“Like the black armbands in Tinker, L.M.’s shirts were a ‘silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitione[r],’” wrote Alito. He added that “Tinker made abundantly clear that the ‘mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint’ is no reason to thwart a student’s speech.”

In B.B.’s case, the appeals court panel affirmed that elementary students like her indeed have a right to free speech. The judges concluded that B.B.’s drawing did not violate the first prong of the Tinker test because it did not disrupt classwork or create substantial disorder at her school. They sent the case back to the lower District Court to resolve the facts still in dispute.

Regent law professor Christian Edmonds told WORLD that the main takeaway from Tuesday’s ruling is that even elementary school age children have First Amendment rights. But he added that what is more challenging about the case is whether the drawing constituted an attack on a core characteristic of M.C.—her race—and noted that her mother certainly thought so.

“Is this about the offense of the child or the offense of the parent? Because we’re talking about the First Amendment rights of children,” asked Edmonds. “What about when you’re dealing with these younger kids, right? They just don’t understand certain things. So how much of the offense can be imported from the parent to establish these claims?”

The appeals court did not address that question. For now, the case heads back to the lower court for a trial to resolve the factual disputes—or a resolution out of court. “It’s a good reminder from a Christian worldview of trying to work things out among ourselves,” said Edmonds. “Because it can get a little messy when you go outside the confines of relationships.”