B.B. v. Capistrano Unified School District

On July 22, the Liberty Justice Center filed an amicus brief urging the U.S. Court of Appeals for the Ninth Circuit to overturn a lower court ruling that would grant school administrators virtually unchecked discretion to punish elementary school children for their self-expression.

B.B. was in first grade when her California school introduced her to “Black Lives Matter”—a phrase rooted in the complex, controversial topic of racial discrimination in American policing. Empathizing with a classmate, B.B. drew a picture of their group with the phrase “Black Lives Mater” [sic], adding “any life” below it.

Conflating the first grader’s innocent use of “any life” with the politicized phrase “All Lives Matter,” school administrators forced B.B. to publicly apologize, prohibited her from drawing at school, and forced her to sit on the bleachers during recess for weeks. The school never told B.B.’s family about the punishments. When they eventually learned what had happened from another parent over a year later, B.B.’s family sued the school for violating her First Amendment rights.

A district court dismissed the case, effectively holding that first graders lack any free speech rights in public school. The court also declined to “second-guess” the school administrators’ decision, claiming that courts must defer to school administrators to avoid “overwhelm[ing] the judiciary.” The case has now been appealed to the U.S. Court of Appeals for the Ninth Circuit.

The Liberty Justice Center’s amicus brief warns that students’ constitutional rights are threatened by near-total deference to school administrators, highlighting the harm that can arise from suspensions, public shaming, and other harsh disciplinary methods. The brief also argues that the district court’s concern about overwhelming the judiciary has things backward—if courts refuse to clearly uphold students’ free speech rights, it will invite more censorship and ultimately create more lawsuits.

“School administrators are state actors who wield extraordinary power over the families of more than 65 million children attending public schools. They must not be allowed to punish children on a whim whenever their own hypersensitive political views are offended,” said Dean McGee, Educational Freedom Attorney at the Liberty Justice Center.