The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"Black Lives Mat[t]er" + "Any Life" Drawing "Not Protected by the First Amendment" in First Grade
Such speech can be found to be "impermissible harassment," the court says, partly because "deference to schoolteachers is especially appropriate today, where, increasingly, what is harmful or innocent speech is in the eye of the beholder."
From B.B. v. Capistrano Unified School Dist. (C.D. Cal.), decided last month but just posted on Westlaw:
When B.B. was in first grade, she made a drawing (the "Drawing") that included the phrase "Black Lives Mater [sic]" printed in black marker. Beneath that sentence, B.B. added "any life," in a lighter color marker. B.B. gave the Drawing to a classmate, M.C., who took it home. When M.C.'s mother saw the Drawing, she emailed the school, stating that she would not "tolerate any more messages given to [M.C.] at school because of her skin color" and that she "trust[ed]" the school would address the issue.
Later that day, the school's principal, Becerra, approached B.B. at recess. Becerra told B.B. that the Drawing was "inappropriate" and "racist," and that she was not allowed to draw anymore. {At the hearing, the parties disputed whether B.B. testified that Becerra told her the Drawing was racist. Although B.B.'s deposition is unclear, the Court must construe her testimony in the light most favorable to B.B.} He also instructed B.B. to apologize to M.C., which B.B. did twice.
When B.B. returned to class from recess, two of her teachers told her that she was not allowed to play at recess for the next two weeks. The teachers did not tell B.B. the reason she could not play at recess, and there is no direct evidence that Becerra directed B.B.'s teachers to punish B.B. in this way….
Plaintiff [B.B.'s mother] argues that Becerra's response to the Drawing—compelling her to apologize to M.C., prohibiting her from drawing other pictures for her friends, and preventing B.B. from playing at recess for two weeks—violates her First Amendment right to free speech. However, this schoolyard dispute, like most, is not of constitutional proportions.
Although students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," their rights are "not automatically coextensive with the rights of adults in other settings." For school children, the First Amendment must be "applied in light of the special characteristics of the school environment." Because educators best understand those special characteristics, courts give "educators substantial deference as to what speech is appropriate." "[T]he determination of what manner of speech is inappropriate" at school "properly rests with the school board, rather than with the federal courts." …
"Under Tinker [v. Des Moines Indep. School Dist. (1969)], 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.'"
Much of the caselaw applying Tinker focuses on its "substantial disruption" prong. As a result, "[t]he precise scope of Tinker's 'interference with the rights of others' language is unclear." However, the cases reveal three principles that help identify when speech unduly infringes on the rights of other students such that it is not protected under the First Amendment.
First, where speech is directed at a "particularly vulnerable" student based on a "core identifying characteristic," such as race, sex, religion, or sexual orientation, educators have greater leeway to regulate it. Although speech that is "merely offensive to others" cannot be regulated, courts have recognized that denigrations based on protected characteristics do more than offend—they can inflict lasting psychological harm and interfere with the target student's opportunity to learn. These types of denigrations, moreover, have little countervailing benefit to the learning environment. Derogatory speech is therefore "not the conduct and speech that our educational system is required to tolerate, as schools attempt to educate students about 'habits and manners of civility' or the 'fundamental values necessary to the maintenance of a democratic political system.'" Thus, "[w]hatever the outer boundary of Tinker's interference inquiry," the case law "establish[es] that students have the right to be free" from speech that "denigrate[s] their race" while at school.
Second, the mere fact that speech touches upon a politically controversial topic is not sufficient to bring it under the First Amendment's protective umbrella. In Harper, for instance, the district court denied a preliminary injunction brought by a student who was told that he could not wear a homophobic shirt to school. The Ninth Circuit affirmed the district court despite the "political disagreement regarding homosexuality" that existed at the time. At the same time, however, school administrators must have a justification above the "mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint" before they may regulate student speech.
Third, and most pertinent for the present case, age is an important factor when deciding whether speech is protected. In Tinker, the Court held that a high school could not ban students from wearing black arm bands that signaled opposition to the Vietnam War. The Court emphasized that denying students this type of expression—which neither interfered with the school environment nor intruded on other students' rights—may coerce political orthodoxy and "strangle the free mind" of high school students. An elementary school, by contrast, is not a "marketplace of ideas." Thus, the downsides of regulating speech there is not as significant as it is in high schools, where students are approaching voting age and controversial speech could spark conducive conversation. As the Seventh Circuit has recognized, elementary schools "are more about learning to sit still and be polite, rather than robust debate." To fulfill that mission, elementary schools require significant latitude to discipline student speech. Indeed, "much—perhaps most—of the speech that is protected in high grades" may be regulated in elementary schools.
"The targeted student's age is also relevant to the analysis." 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. 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….
Giving great weight to the fact that the students involved were in first grade, the Court concludes that the Drawing is not protected by the First Amendment. B.B. gave the Drawing to M.C., a student of color. The Drawing included a phrase 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. Indeed, M.C.'s mother testified that those kinds of messages "hurt." Soon after discovering the Drawing in M.C.'s backpack, M.C.'s mother emailed the school, and stated that she believed her daughter received the Drawing because of her race. Based on this email and the content of the Drawing, Becerra concluded that the Drawing interfered with the right of M.C., a first grader, "to be let alone."
{The phrase "All Lives Matter" gained popularity in response to the growth of the Black Lives Matter movement ("BLM"), a social movement protesting violence against Black individuals and communities, with a focus on police brutality. "All Lives Matter" can be seen as an offensive response to BLM because that phrase obscures "the fact that [B]lack people have not yet been included in the idea of 'all lives.'"}
Undoubtedly, B.B.'s intentions were innocent. B.B. testified that she gifted the Drawing to M.C. to make her feel comfortable after her class learned about Martin Luther King Jr. But Tinker does not focus on the speaker's intentions. Rather, it examines the effects of speech on the learning environment and other students, giving deference to school officials' assessments about what speech is acceptable in an educational setting. Such deference to schoolteachers is especially appropriate today, where, increasingly, what is harmful or innocent speech is in the eye of the beholder. Teachers are far better equipped than federal courts at identifying when speech crosses the line from harmless schoolyard banter to impermissible harassment. Here, Becerra concluded that the Drawing, although well-intentioned, fell on the latter side of that line.
A parent might second-guess Becerra's conclusion, but his decision to discipline B.B. belongs to him, not the federal courts. Elementary schoolteachers make thousands of disciplinary decisions on American playgrounds every day. Federal court review of all these decisions would unduly interfere with school administration and overwhelm the judiciary. Regardless of whether Becerra was right or wrong, the decision is his, and this schoolyard dispute—like most—does not warrant federal court intervention.
This seems to me unconstitutional, even in first grade. One can debate whether the First Amendment should apply to disciplinary decisions by K-12 schools (Justice Black, back in his day, argued it shouldn't, and so has Justice Thomas more recently); one can likewise debate whether it applies in the lowest grades. But the courts have not so held, and the premise of this particular court opinion seems to be that some first-grader speech, if approved of by a federal court, would indeed be protected. (The standards courts have set, which is that speech can be punished if it "materially disrupts classwork," sets a much higher bar than seems to be shown here.)
Rather, the 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. 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. Seems quite inconsistent with the Court's conclusion that "In our system, state-operated schools may not be enclaves of totalitarianism."
