A schoolchild and her mother asked a federal appeals court this week to decide whether a child should have been punished for making what their lawyers call an innocuous drawing that arose out of a history lesson in class.
The case centers around a drawing in which the white child wrote the phrase “Black Lives Mater [sic]” but then apparently caused offense by qualifying it with the phrase “any life.”
The opening brief in the new appeal was filed with the U.S. Court of Appeals for the Ninth Circuit on July 15.
Lawyers for the child, known in legal papers as B.B., say she was punished for her speech, and that school officials in Capistrano Unified School District in California’s Orange County retaliated against her. They say both the punishment and the retaliation violate the First Amendment to the U.S. Constitution.
The case goes back to 2021 when the then-first grade student heard the phrase “Black Lives Matter” when it came up during a lesson about the Rev. Martin Luther King Jr., the black civil rights leader who was slain in 1968, according to public interest law firm Pacific Legal Foundation (PLF), which is representing the child and her mother, Chelsea Boyle.
B.B., who has Attention Deficit Hyperactivity Disorder (ADHD), uses art “as her primary therapeutic outlet for this disorder,” according to the legal complaint that was filed in federal district court on Nov. 6, 2023.
To support her black friend and classmate who is identified in court papers as M.C., B.B. drew a picture of the two of them, along with two other friends, writing “Black Lives Mater [sic]” at the top. She added the phrase, “any life,” PLF said.
“B.B.’s intent was to show children of various races getting along,” according to the legal complaint.
It was the “any life” qualification that seems to have angered school officials.
Throughout the history of the Black Lives Matter movement, some of its supporters have been known to strongly criticize people who respond to the phrase “Black Lives Matter” by saying “all lives matter,” instead of focusing exclusively on the lives of black people.
For example, John A. Powell, a law professor and director of the Othering & Belonging Institute at the University of California at Berkeley, wrote in 2020 that he objected to the phrase.
“All lives matter also ignores history and resists efforts to improve the lives of Black people specifically, who have been struggling for 400 years under the weight of anti-Black racism to belong in this country and to have our humanity seen,” Mr. Powell wrote.
PLF said when M.C. showed her mother the drawing, the mother worried her daughter had been singled out because she was black, and got in touch with school officials.
The school principal, Jesus Becerra, required a confused B.B. to apologize to M.C., said she couldn’t enjoy recess for two weeks, and forbade her from drawing at school. The friend did not understand why the apology was given, the law firm said.
The school did not explain to B.B. what she had done wrong, nor did it inform her parents of what happened. The parents only learned what had transpired a year later after another parent told them, PLF said.
As a result of the events at school, “B.B. suffered severe emotional distress, humiliation, and ostracization,” the legal complaint said.
PLF attorney Caleb Trotter said B.B. was introduced to the concept of Black Lives Matter at school where a poster on the topic was prominently displayed.
But because she was in first grade, B.B. didn’t fully grasp the concept, which was being discussed at school in the context of historical racism, he said.
“B.B. felt bad for one of her classmates, who is a person of color, and so she made this drawing,” Mr. Trotter told The Epoch Times.
“B.B. was trying to make her friend feel included—that was the whole entire motivation behind it.”
What followed was “an incredibly gross overreaction by the school to something entirely innocent,” he said, adding that the school created the situation by teaching first graders about “very adult controversial topics.”
School officials punished B.B. because her behavior failed to “fall in line with their notions of racial ideology,” he said.
In the case, Judge David O. Carter of U.S. District Court in the Central District of California dismissed the plaintiffs’ federal law claims in the case known as B.B. v. Capistrano Unified School District.
Judge Carter held on Feb. 22 that neither the punishment nor the retaliation violated the First Amendment. He also held that the drawing interfered with the right of B.B.’s classmate “to be let alone.”
Mr. Trotter said the district court “effectively said that first graders have no First Amendment rights in school, and that’s just obviously wrong.” The ruling flies in the face of 100 years’ worth of Supreme Court precedents, the lawyer added.
The Capistrano Unified School District declined comment.
“It is our practice not to comment on pending legal matters,” Ryan Burris, the district’s Chief Communications and Public Engageme
