Capistrano Unified School District Principal Can Be Sued for Violating Student’s Free Speech

The Capistrano Unified School District principal who punished a first grader for writing “all lives” on a Black Lives Matter drawing can be sued for violating the student’s free speech rights, the United States Court of Appeals for the Ninth Circuit ruled earlier this month.

Ruling that even first graders have First Amendment rights, the Appeals Court reinstated the free speech lawsuit that the girl’s mother  had filed against the principal and the District with the help of the Pacific Legal Foundation.

United States District Court for the Central District of California Judge David Carter had issued summary judgment for the School District in 2024, ruling that the girl was too young for her drawing to count as protected speech and that school officials had grounds to punish her for it.

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 wrote. “Teachers are far better equipped than federal courts at determining when speech crosses the line from harmless schoolyard banter to impermissible harassment.”

But the three judge Appeals Court panel–composed of two judges appointed by Joe Biden and one by George W. Bush–ruled that the girl’s speech rights should be considered.

“In sum, we reaffirm that although a school’s decision is entitled to deference, the school has the burden of showing that its actions were reasonably designed to protect the safety and well-being of its students,” the panel wrote. “Age is relevant as younger students are more vulnerable than students who are approaching adulthood. But, as all students, including elementary school students, have First Amendment rights, the school has the burden, under the Tinker balancing test, of showing that its actions were reasonably undertaken to protect the safety and well-being of its students.”

Tinker is the 1969  Supreme Court decision that said public school students generally have free speech rights but school authorities can curtail their speech if it is disruptive.

“Applying the criteria set forth in Tinker v. Des Moines Independent Community School District, we hold that elementary students’ speech is protected by the First Amendment, the age of the students is a relevant factor under Tinker , and schools may restrict students’ speech only when the restriction is reasonably necessary to protect the safety and well-being of its students. Because the Tinker analysis raises genuine issues of material fact, we vacate the grant of summary judgment and remand,” the panel ruled.

Pacific Legal Foundation lawyer Caleb Trotter, who handled the case, told the California Globe that he welcomed the Appeals Court ruling and that it was in line with Supreme Court precedents.

“We’re thrilled to see the Ninth Circuit expressly affirm what has been the case since at least 1943 when the Supreme Court held that public schools could not require students to recite the pledge of allegiance—that even young elementary-age students have First Amendment rights in school,” Trotter emailed. “We’re also thrilled that the Ninth Circuit held that the school district must be held to a hefty burden to prove that [the girl’s]nnocent drawing was worthy of such harsh punishment. In no sane world will they be able to do so.”

Trotter explained that,  “Unless the school district decides to appeal the decision further, the case will go back to the district court for a trial where the school district would have to prove that it had sufficient reasons to punish [the girl] for her innocent drawing, among other things.”

The girl, identified in court papers as B.B., was a first grader at Viejo Elementary School in 2021 when the fracas started.

She listened to her teacher read a book about Martin Luther King and also discuss the Black Lives Matter movement.

B.B. did not really understand what Black Lives Matter meant but became concerned for her black classmate so she decided to draw a picture for her, the lawsuit says.

“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.”

She gave it to M.C, who put it in her knapsack without comment and brought it home to her mother.

The mother then complained to Viejo Elementary School Principal Jesus Becerra that her daughter was being singled out for being black. But the mother told Becerra she did not want B.B. to face any disciplinary measures.

Becerra did not listen to her and proceeded to berate B.B.

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.”

But Becerra was not done.

He told B.B. not share any more drawings and banned her from recess for two weeks.

That sounds like a cruel 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 Chelsea Boyle, the mother of B.B. about the punishment.

She learned about it from another parent about one year later.

Boyle then complained to the Capistrano School District about Becerra and the punishment he meted out. But the District told her he acted appropriately.

She filed a lawsuit against the School District and Becerra in February 2023  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 Capistrano Unified School District communications office did not reply to an emailed inquiry.