Judge Rules That First Grader Is Too Young for Free Speech Protections

When the girl’s mother disagreed with an elementary school’s punishment, she took it to court, and is now bringing her appeal to the Ninth Circuit court. The lower court judge stood by their decision, as elementary school is “not a marketplace of ideas.”

She was held back at recess for two weeks, made to apologize to students and teachers and banned from drawing pictures for friends, all without her mother’s knowledge. B.B.’s mother, Chelsea Boyle, was not happy when she found out. “I was immediately angry. I didn’t know what had happened, I knew it was wrong fundamentally,” Boyle said.

B.B.’s teacher read a book about Martin Luther King Jr. to the classroom in Orange County, California. Learning for the first time about racism, the appeal statement reads: “The book had the effect of making B.B. feel bad for a classmate of color (M.C.); B.B. then drew a picture for M.C. to help her feel included.”

B.B. gave M.C. the drawing, who accepted it happily and took it home. M.C.’s mom was concerned that her daughter was being singled out for her race and told the school’s principal.

“My children see color as a color, as a description. I am trying to raise them the way the world should be, not the way it is. That’s how I’m trying to make my personal change,” Boyle said.

According to the appeal, Becerra felt that “any life” was “inconsistent with values taught in the school but acknowledged that [B.B.’s] motives were innocent.” Reports have stated that Becerra did not explain why B.B. was being punished.  

Becerra was under qualified immunity against Boyle’s First Amendment and retaliation claims. However, the federal district court ruled on behalf of Becerra under the argument that first grade students are not protected by the First Amendment.

The court cited an argument ruling from the Supreme Court: “Schools may restrict speech that ‘might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities’ or that collides with the rights of other students to be secure and let alone.”

The court said the phrase is “an inclusive denotation but one that is widely perceived as racially insensitive and belittling when directed at people of color.” However, the appeal claim argues that children should not be expected to leave free speech outside the school gate.

The appeal claims that the first grader’s speech is protected under Tinker v. Des Moines, a Supreme Court ruling that says: “First Amendment rights […] are available to teachers and students [who do not] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The Pacific Legal Foundation said that the lower court incorrectly fell under First Amendment exemptions for speech at school that impedes on a student’s right to be left alone or causes “substantial disruption”.

M.C., the recipient, was not offended by the drawing and her family did not want to see B.B. punished either. B.B. and M.C. are reportedly still friends despite everything.