First Amendment protects elementary school students, appeals court says in 'All Lives Matter' case

Nearly two years after a federal judge erased First Amendment rights for all students in first grade and below, based on a drawing with "undoubtedly … innocent" intentions, an appeals court slammed him for misreading precedent so badly.

President Clinton-nominated Judge David Carter invented an age exception out of whole cloth in the 57-year-old Supreme Court ruling Tinker, which upheld students' right to nondisruptive free expression at school, to side with a censorious elementary school principal, the 9th U.S. Circuit Court of Appeals unanimously ruled Tuesday.

Composed of two President Biden nominees and one by President George W. Bush, the panel vacated Carter's judgment and remanded the case for trial, letting him consider age as a "relevant" but not "dispositive" factor as he did originally, and approved requests by state and national free speech and parental rights groups to file friend-of-the-court briefs.

Although Tinker gives schools "comprehensive authority to 'prescribe and control conduct,'" the unsigned opinion says, "even for an elementary school student, the school has the burden of showing that its actions were reasonably undertaken to protect the safety and well-being of its students" when free expression is curtailed.

The panel said it wasn't breaking new ground by applying Tinker to elementary school, citing four sister circuits that have done so since 2011. Now that the 9th Circuit has joined the 3rd, 5th, 6th and 7th, half the states expressly recognize younger students' First Amendment rights, including California, Illinois, Pennsylvania and Texas.

While "not many courts have had occasion to apply [Tinker] in the elementary context … even as far back as West Virginia v. Barnette in 1943 (the pledge of allegiance case), the Supreme Court held that young elementary-age kids have 1A rights in school," Pacific Legal Foundation attorney Caleb Trotter, representing the plaintiffs, told Just the News in an email.

The panel opinion also invoked Barnette to show that Tinker, which "by its own terms" concerned high school students, was building on earlier recognition for students' First Amendment rights regardless of age.

The ruling "affirms what should be obvious: Students don’t lose their constitutional rights just because they’re young" and express "a well-intentioned message to a friend," Trotter said in Pacific Legal's press release.

Recipient of drawing didn't perceive it as 'derogatory and injurious'

Mother Chelsea Boyle sued California's Capistrano Unified School District and Viejo Elementary School Principal Jesus Becerra in 2023 on behalf of her daughter, identified in court as "B.B.," for punishing the first-grader for giving a classmate a drawing that reads "Black Lives Mater [sic] any life" after a lesson on Martin Luther King Jr. that used the BLM phrase.

The lesson made B.B. feel sorry for black people, so she made the drawing, which showed "all her friends holding hands," and gave it to one of them, M.C.

The constitutional issues were such a slam dunk for Carter that he granted summary judgment to Becerra, who allegedly scolded B.B., told her not to give classmates any more drawings and forced her to apologize to M.C., though Becerra denied calling the drawing "racist" or "not appropriate." 

The school never told the Boyles about B.B.'s punishment, which they learned nearly a year later from another parent.

Other students and faculty, including counselor Cleo Victa, engaged in weeks of "bullying and harassment" of B.B. after her mother used the "internal complaint process" and asserted the girl's legal rights in response to Becerra's punishment, according to the 2023 lawsuit. (The plaintiffs dropped Victa as a defendant on appeal, solely targeting Becerra.)

It was the parents of M.C., not the classmate herself, who complained to the school about the drawing, saying that "any life" singled out their daughter by "skin color." The lawsuit doesn't identify M.C.'s race but Carter said "strong circumstantial evidence" suggests she's not white, while the 9th Circuit called M.C. "African American." 

Carter justified Becerra's actions by claiming "All Lives Matter" – what B.B. said she meant – is "widely perceived as racially insensitive and belittling when directed at people of color." A Missouri school district taught teachers the phrase is white supremacist, though BET founder Robert Johnson has called white outrage about the phrase insulting to blacks like him.

The judge's ruling partly depended on a glaring falsehood, that Becerra is a "teacher" who is "far better equipped than federal courts at identifying when speech crosses the line from harmless schoolyard banter to impermissible harassment" rather than an administrator making judgments without witnessing student interactions as a teacher would.

That error is apparent in one of the outstanding factual disputes, whether B.B. was banned from recess for two weeks at the direction of Becerra, after talking to M.C.'s mother, or whether B.B.'s teachers made the call on their own.

The panel notes B.B.'s banishment, which "may constitute punishment" for legal purposes, was "not documented" but that it happened after Becerra scolded her. Carter's ruling also said a "reasonable jury could infer" Becerra directed it due to "close temporal proximity."

While the 9th Circuit has previously deemed age relevant in Tinker disputes, giving "grade schools" greater control over student speech and permitting suspension for speech that interferes with "younger students’ rights to be secure and let alone," the panel rebuked Carter for saying B.B.'s drawing is not constitutionally protected.

It's not like prior 9th Circuit rulings upholding punishment for wearing an "anti-homosexual" shirt to school and "name-calling" to "abuse and intimidate other students at school," it said.

There is "no suggestion that B.B.’s drawing created a reasonable likelihood of material disruption of classwork or substantial disorder at her school," meaning B.B.'s message would have to violate M.C.'s rights for Becerra to punish the former.

The panel noted the anti-gay T-shirt precedent Harper said interfering with others' rights includes "derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation," and the 1st Circuit used a similar test in the Massachusetts "only two genders" shirt dispute, which SCOTUS controversially refused to review.

While the email from M.C.’s mother required Becerra "at a minimum" to investigate whether M.C. needed further protection, the evidence suggests "M.C. was unaffected by the drawing" and didn't make a connection between "any life" and "All Lives Matter." M.C. asked her mother what the drawing meant, and her mother told her "not to worry about it." 

Summary judgment was improper for Becerra in light of basic factual disagreements such as whether B.B.'s recess ban – which the principal denies happened – was "punishment" and how he described the girl's drawing when he initially scolded her, the panel said.

The core flaw in Carter's ruling remains his dismissal of younger students' First Amendment rights, the panel concludes.

"The students’ very young ages gave the school broader discretion, but it does not relieve the school and Becerra from meeting their burden of showing that their actions were reasonably undertaken to protect the safety and well-being of the school’s students," it said.