The girl was was kicked out of recess for two weeks after writing ‘any life’ on a Black Lives Matter drawing she had made.
Chelsea Boyle first learned of her daughter’s punishment at school from another mom.
Until then, she was unaware that her daughter was learning about the Black Lives Matter movement in first grade at Viejo Elementary School in Southern California. She was unaware of the drawing her daughter had made for a black friend about a year earlier, in March 2021, as a gesture to ensure her friend felt included at school.
And she was unaware that her daughter had been punished for the drawing because, in addition to writing that “Black Lives Mater,” she had also written “any life.”
Because the suggestion that “any life” mattered was inconsistent with the school’s values in 2021, during what was essentially the peak of the post–George Floyd racial-justice movement, Boyle’s daughter was kicked out of recess for two weeks, barred from drawing any more pictures for her friends, and forced to apologize to her friend, though neither child understood why, according to court documents.
“Another mother had mentioned it to me, and I was like, ‘Wait, what? I’m sorry, what are you talking about? Are you talking about my daughter?’” Boyle told National Review, recalling that encounter in March 2022. “I was irate. I burst into tears.”
Boyle said she initially sought an apology from Viejo Elementary principal Jesus Becerra and the Capistrano Unified School District, but when it never came, she took legal action. In February, a district-court judge ruled in favor of the school officials, finding that Boyle’s daughter’s expression wasn’t protected by the First Amendment because of her young age.
Now, with the help of lawyers from the Pacific Legal Foundation, Boyle is taking her case to the Ninth Circuit Court of Appeals. Pacific Legal lawyers argue that the district court’s ruling runs against decades of legal precedent that protects the speech of students, even young students, when it is not disruptive. They filed their opening brief on July 15.
The case hits on a number of hot-button issues that have riled parents across the country in recent years: public-school officials’ pushing left-wing ideology in classrooms, clamping down on dissent from progressive orthodoxy, and hiding critical information from parents.
“This case is just an example of divisive racial ideology in schools that has gone just so far overboard that even admittedly innocent statements by first-grade students are punished because they appear to stray from the preferred progressive view,” said Caleb Trotter, a Pacific Legal lawyer. “That is deeply troubling and alarming.”
The Supreme Court has long held that students don’t check their free-speech rights at the door of the schoolhouse. As evidence, Trotter pointed to the 1943 ruling in West Virginia State Board of Education v. Barnette, which held that the First Amendment bars public schools from compelling students to recite the Pledge of Allegiance.
Trotter also pointed to the 1969 decision in Tinker v. Des Moines Independent Community School District, which found that teenage students were within their rights to wear black armbands to school to protest the war in Vietnam, because the protest was not disruptive.
“The district court saying that elementary-school students basically have no First Amendment rights flies in the face of 100 years, at least, worth of Supreme Court precedent and just can’t be allowed to stand,” Trotter said. “School districts around the country are looking at that. Who knows how emboldened they could be to punish and restrict speech that they disagree with in school.”
Boyle told National Review that after learning about her daughter’s punishment from another mother, she asked her daughter if she’d gotten in trouble for drawing a picture.
“She said, ‘Yes,’” Boyle recalled. “I said, ‘Listen, you are not in trouble, you are not in trouble at all. But I need you to tell me exactly what happened, exactly what the picture was, what did you write on the picture, and tell me what happened.’ And she told me the whole story.”
According to the Pacific Legal brief, Boyle’s daughter had been exposed to Black Lives Matter content during a classroom reading about Martin Luther King Jr. The majority-minority school also had a Black Lives Matter picture with a clenched fist that Boyle’s daughter saw daily.
In an effort to make her black friend feel included, Boyle’s daughter drew a picture that said “Black Lives Mater,” but she also included the words “any life.” There are also four ovals of different shades at the bottom representing Boyle’s daughter and her friends.
Boyle’s daughter’s friend put the picture in her backpack and took it home. When her mother discovered it, she reached out to Becerra to make sure that her daughter wasn’t being singled out in class because of her race. She didn’t want Boyle’s daughter punished.
But Becerra deemed the drawing “racist” and “inappropriate,” the Pacific Legal brief says.
According to the brief, he instructed Boyle’s daughter to apologize to her friend over the drawing. Both girls “expressed confusion” over the forced apology, the brief says. Boyle’s daughter was also barred “from drawing and giving pictures to classmates while at school,” the brief says, and she was held out of recess for two weeks and “forced to sit on a bench and watch her classmates play without her.”
“I was upset that my daughter had been discriminated against,” Boyle said of the school’s response to the drawing. “I was upset that I was never told about it.”
Becerra disputes aspects of this account, Boyle and Trotter said. His “story kept changing, and it’s continued to change,” Boyle said. They based their brief on deposition testimony and about 600 pages of documents and notes Boyle has taken over the years.
“I saved everything. I saved every email,” Boyle said. “I made sure everything was in writing. Every time I talked to somebody I took notes of what they said.”
Attempts by National Review to reach Becerra on the phone and via email were unsuccessful.
Boyle said that, at the outset, all she was looking for from school leaders was an apology. Now, with her legal fight, she feels like she’s standing up for students across the country.
She said that in the wake of the racial-justice protests of 2020, she told school leaders and her children’s teachers that she didn’t want them included in Black Lives Matter instruction. She said she was told they weren’t teaching that. Now she feels misled.
“My daughter attended school to learn how to read, write, and learn arithmetic,” she said, noting that Viejo Elementary is below state standards in English and math. “I have no idea why children or babies are learning about this at school, and I thought it was wholly inappropriate. And I think Viejo Elementary, by doing this, they created this problem.”
Boyle said that because of her dispute with school leaders and the district, her children were harassed and retaliated against. She and her family have since relocated to Florida. Boyle said her daughter is still healing from the trauma and struggles with trusting adults.
In February, U.S. Central District Court judge David Carter granted summary judgment to Becerra and the school district, finding that the First Amendment doesn’t necessarily apply to elementary students, who are mostly “learning to sit still and be polite.”
Elementary school is “not a marketplace of ideas,” he wrote. “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.”
He added that a “parent might second-guess [the principal’s] conclusion, but his decision to discipline [Boyle’s daughter] belongs to him, not the federal courts.”
So, while Boyle’s daughter’s speech was significant enough to warrant punishment for flouting left-wing norms, it was somehow not significant enough to warrant First Amendment protection. Trotter said there are inconsistencies in the judge’s ruling.
Trotter said he and his legal team are “very confident in a good result” at the Ninth Circuit but are willing to take the fight to the Supreme Court if necessary.
In addition to the potential First Amendment violations and the school’s apparent efforts to keep Boyle in the dark, Trotter said the school also failed to use the drawing as a teaching moment for young kids struggling to understand concepts around race.
“Instead, what they did was they just punished [Boyle’s daughter] from straying from the one view of this that the school, or at least the teacher, wanted to push,” he said. “They just fundamentally failed as educators to properly approach the subject.”