First Grader Punished After Drawing ‘BLM’ With ‘Any Life’ Underneath. A Court Ruled Free Speech Doesn’t Protect Her.

 A first grader who made a drawing that included the words “Black Lives Mater [sic]” with “any life” underneath was punished by her school.

Her mother sued the school, arguing her daughter’s First Amendment rights were violated, but a California district court ruled that the drawing was not protected speech because educators are given “substantial deference as to what speech is appropriate.”

The little girl, referred to only as B.B. in the court documents, drew the picture and gave it to another student, referred to only as M.C., who is apparently a student of color. M.C.’s mother saw the drawing and emailed the school, saying she trusted that the school would address the drawing.

The background provided in the judge’s ruling said that on the day M.C.’s mother emailed the school, B.B. was approached by the school’s principal during recess and told the drawing was “inappropriate” and “racist,” though the school disputes telling her it was racist. B.B. was told she could not draw anymore and that she must apologize to M.C., which B.B. did, twice.

After recess, B.B. was told by her teachers that she would not be allowed to play during recess for two weeks, but was not told why, according to the documents. There is also no evidence the principal directed the teachers to further punish B.B.

B.B.’s mother insisted that the punishment violated B.B.’s constitutional right to free speech, but the U.S. District Court for the Central District of California’s Southern Division ruled the opposite.

Citing previous case law, the court said that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” but that their rights also are “not automatically coextensive with the rights of adults in other settings.”

Further, the court cited case law arguing that the First Amendment must be “applied in light of the special characteristics of the school environment” and that educators understand those needs best.

 

The court cited Tinker v. Des Moines Indep. School Dist., which held that schools could restrict speech that “might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities” or that infringes on “the rights of other students to be secure and let alone.” The court also said that educators have “greater leeway” in regulating speech “directed at a ‘particularly vulnerable’ student based on a ‘core identifying characteristic,’ such as race, sex, religion, or sexual orientation …”

The court argued that by giving the drawing to M.C., described as a “particularly vulnerable” student because of her skin color, the school acted reasonably in regulating B.B.’s free speech. The court also said that the drawing interfered with the school environment.

“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,” the court argued. “Relatedly, first graders are impressionable. If other students join in on the insults, the disruption could metastasize, affecting the learning opportunities of even more students.”

The California court argued the phrase “any life” to be “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.”

In her own testimony, B.B. said she gave the drawing to M.C. to make her feel comfortable after learning about Martin Luther King Jr. in class. It is also unclear how M.C. felt about the drawing, given that it was her mother who emailed the school after finding the drawing in M.C.’s backpack.

Eugene Volokh, a UCLA law professor, wrote that he found the court’s ruling “unconstitutional, even in first grade.”

“[T]he 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,” Volokh wrote. “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.”