Capistrano School District Accused of Trampling First Amendment Rights of Student

Woke school officials are notorious for stamping out racism where none exists.

Last year,  San Diego school district officials got sued for punishing a student for supposedly wearing blackface at a football game when it was really just face paint.

Now, a similar saga and pitched legal battle is unfolding with the Capistrano Unified School District in Orange County where an elementary school student was punished and deemed a racist for making a drawing that said Black Lives Matter with the offending phrase ”all lives”  under it.  The girl, through her mother, Chelsea Boyle,  is suing the School District for violating her First Amendment rights.

Last year, a federal judge issued a summary judgement for the School District, ruling that the girl’s drawing was not protected speech.  She has appealed to the United States Court of Appeals for the Ninth Circuit with the help of the conservative Pacific Legal Foundation in Sacramento. Oral arguments in the case are expected to be held sometime in April.

Pacific Legal Foundation lawyer Caleb Trotter told the California Globe that, “There are two equally important principles at stake in this case. First, children have First Amendment rights, even in school, that cannot be trampled without actual evidence justifying the need to limit those rights. The desire of school officials to avoid uncomfortable situations is not enough. Second, this case highlights the problem of introducing controversial adult topics about race to young children in a one-sided manner. If school officials decide to teach about issues focused on race, they must allow children room to engage with that material without being punished for innocently failing to adhere to adult talking points about that subject matter.”

The fracas dates to March 2021 when the girl, identified in court papers as B.B., a student at Viejo Elementary School heard a lesson on Martin Luther King that  also touched on the Black Lives Matter movement.

B.B’s teacher read her and the other students in the class a book about Martin Luther King and also discussed the Black Lives Matter movement.  But the students were probably already familiar with it as the school had  “had a picture displayed that included the phrase “Black Lives Matter,” along with a clinched fist, that B.B. saw every day,” according to her appeal.

B.B. became concerned for a classmate of color. “While B.B. did not understand what the phrase meant,  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.’s picture contained the phrase “Black Lives Mater” (sic) drawn in black marker.  Below that was the phrase “any life” written in a lighter color marker. Below “any life” were four circles of different colors which B.B. drew to represent three classmates and herself holding hands.”

So B.B. was apparently making some kind of appeal to universality and transcending color to form connections.   “After receiving the drawing, M.C. thanked B.B., put it in her backpack, and took it home without comment,” her appeal recounts.

This sounds like one girl just trying to befriend her classmate. But things quickly spiraled out of control when adults got involved.

M.C.’s mother complained to Viejo Elementary School principal Jesus Becerra that her daughter was being singled out for her race, but explicitly said she did not want B.B. punished.

But Becerra disregarded those instructions and decided to punish B.B. anyway– recasting her innocent behavior as predatory, in a spasm of self-righteousness that sounds like belittling a little girl was some kind of power trip for him. Becerra told B.B. that the drawing was “racist” and “inappropriate” because it contained the phrase “any life.”

He forced B.B. to apologize to M.C. for the drawing. “Upon being apologized to, M.C. expressed confusion about what B.B. was apologizing for. B.B. shared M.C.’s confusion about the need for an apology but did as she was told.”

Next he banned B.B. from giving drawings to any more classmates. B.B. was then prohibited from taking part in recess for two weeks, which sounds like a devastating punishment. “During those two weeks where she was banned from recess, B.B. was forced to sit on a bench and watch her classmates play without her.”

The school never informed B.B’s mother, Chelsea Boyle, about the punishment. She only learned about it about one year later in a text exchange with another parent.

Boyle complained to the Capistrano Unified School District about Becerra and the punishment but the District backed him.

She filed a lawsuit against the School District and Becerra in February 2023 in the United States District Court for the District of California for violation of her daughter’s First Amendment rights.

It says that “B.B. had a constitutionally protected and clearly established right to express herself during school without discipline, provided her speech did not materially and substantially interfere with the school’s operation. The longstanding principle forbids schools from censoring speech based on its content unless the speech is threatening or significantly disruptive.”

The lawsuit says that established case law from the Supreme Court on down makes clear that schools can not restrict student’s speech unless it causes imminent disruptions, which was not the case here.

“The general rule that schools may not regulate speech that they or their employees disagree with or consider inappropriate (as opposed to truly threatening or substantially disruptive speech) has been established for decades. Therefore, the rights violated by CUSD and Becerra were clearly established.”

“As such, CUSD and Becerra violated B.B.’s First Amendment Rights by compelling her to apologize for her Drawing and punishing her by benching her and instructing her not to draw pictures for her friends at school or express her Beliefs.”

But on February 22, 2024, United States District Judge David Carter granted summary judgment for the School District, ruling that B.B. drawing was not protected speech. Or as he wrote, “this schoolyard dispute, like most, is not of constitutional proportions.”

Carter contended that “the mere fact that speech touches upon a politically controversial topic is not sufficient to bring it under the First Amendment’s protective umbrella.”

He also cited case law that schools have leeway to regulate speech that singles out students for abuse and claimed that B.B. did that with the drawing she gave to her classmate. “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.”

Represented by the Pacific Legal Foundation, Chelsea Boyle and her daughter filed an appeal to the United States Court of Appeals for the Ninth Circuit last July.

The appeal says that  the judge gave too much deference to school officials. “The district court’s deference to Becerra and the School District here erroneously cedes B.B.’s First Amendment rights to the whims of school officials.”

Moreover, “Nothing in or beyond the record for this case supports granting summary judgment to the School District. The evidence here (primarily deposition testimony) confirms that B.B.’s drawing was innocent and that her classmate, M.C., did not understand the drawing as anything other than a nice gesture. Without evidence showing substantial disruption in school resulting from certain speech, or that particular  students were targeted with ‘inflammatory’ or tortious speech, school officials have no basis to limit a student’s ‘pure speech.’”

The appeal also denied that the term “any life” is derogatory, “nor that M.C. was injured by the inclusion of the phrase,” so school officials had no grounds to police it.

Pacific Legal Foundation lawyer Caleb Trotter says he is optimistic that the appeal will succeed.

“Judge Carter failed to properly apply binding precedent that protects the First Amendment rights of young school children and simply deferred to the decision of school officials to punish speech they did not like. The Supreme Court and the Ninth Circuit require school officials to justify limitations on student speech with evidence showing substantial disruption or interference with others. But here, Judge Carter simply deferred to the school principal’s decision to punish the innocent message of a first grader—punishment that even the parents of the child who received the drawing did not want imposed. For those reasons, we are optimistic that the Ninth Circuit will properly apply precedent and reverse.”

Viejo Elementary School principal Jesus Becerra did not respond to requests for comment.