In a series of actions that can remind anyone of the fear, sadness, and frustration of being a child who is unwarrantedly, unjustly, accused of wrongdoing and subsequently punished, the family of a former California first-grader is suing the Capistrano school system for breaching her right to free speech.
The girl’s horrid and terrible act – drawing a picture and putting a universally accepting, loving message on the paper – is described by Patrick McDonald, for Reason:
“In March 2021, the elementary school student, referenced in legal filings as ‘B.B.,’ drew a sketch depicting several individuals of different races, representing ‘three classmates and herself holding hands,’ the family's complaint states. Above the drawing, B.B. wrote ‘Black Lives Mater’ [sic] with the words ‘any life’ transcribed below the slogan.
B.B. then gave the drawing to one of her classmates, who is black, in an attempt (as she later testified) to comfort her classmate.”
Evidently, the public school teacher didn’t correct the child for misspelling “matter." Instead, the teacher took the six-year-old’s message to be a sly dig on the “Black Lives Matter” phrase used by many protesters of real, perceived, or depicted, government injustice targeted at black people in the U.S., a phrase made world famous after the 2013 acquittal of George Zimmerman for the shooting death of Trayvon Martin and later used during the violent, destructive riots that followed the deaths of Michael Brown and George Floyd.
And, of course, the tax-funded teacher and school principal determined that the child’s addition of “any life” was a sophisticated, insidious, wry dig on the original slogan, and they also determined that swift punishment was in order.
McDonald writes:
“That similarity—whether the first-grader was aware of it or not—was soon to land B.B. in hot water. The same day she made the drawing, B.B. was told by the school's principal, Jesus Becerra, that her drawing was ‘inappropriate’ and, allegedly, ‘racist.’ (The parties dispute whether Becerra told B.B. that the drawing was ‘racist.’ The defense alleges that B.B.'s testimony on the subject is inconsistent.)"
Let’s pause to consider the absurdity of a child and her family having to go through a legal process in response to tax-paid functionaries punishing her in the school where she is trapped and for which her parents have to pay. If the Kafkaesque situation of a little girl having to “testify” about a drawing she made, and for which she received harsh punishment, doesn’t stick in the mind, few other absurdities will.
McDonald explains the punishment, and offers some of the family’s legal position:
“B.B. was forced to apologize to her classmate, prohibited from drawing any more pictures in school, and prevented from going to recess for two weeks.
According to court documents reviewed by Reason, B.B. and her mother, Chelsea Boyle, filed a series of complaints against the Capistrano Unified School District alleging a First Amendment violation.
‘For more than 100 years the Supreme Court has recognized that children retain their civil rights when in school,’ Caleb Trotter, an attorney for the Pacific Legal Foundation (PLF), which is representing the family, tells Reason. ‘Just as a public school can't punish a child for refusing to pledge to and salute the American flag, Capistrano Unified school officials could not punish B.B. for innocently straying from race-focused orthodoxy.’"
Despite its pro-freedom spirit, there a few problems with this statement.
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First, it overlooks the larger picture. Children might be recognized as retaining their civil rights in public schools, but the parents’ and other taxpayers’ civil rights are trampled by the existence, operation, and pedagogy of public schools. This is undeniable. Not one taxpayer can withhold payment for a public school system promoting ideas, books, or projects that the taxpayer finds offensive to his or her principles. This means that no taxpayer actually has, at the most basic level, free speech rights.
Those rights are subsumed, deemed less important than funding the public school monstrosity that the unions, ideologues, and political idol-worshippers place ahead of those individual rights.
The gang, through government, has final say, and that’s inimical to all rights, not just the right of free speech.
So, the focus on the child is just the start of any proper analysis, here, and in all instances of debate over public schooling.
The other big matter being missed is the fact that the parties involved are claiming this is a First Amendment issue.
As I have noted for MRCTV, anyone familiar with the federalist structure of the US Constitution also should be aware that the First Amendment only specifies CONGRESS in its prohibition against infringements on freedom of speech, the press, free assembly, and religion. States were exempt from the First Amendment, and many states had curfews and funded religious schools for decades after the adoption of the U.S. Constitution. Maine and New Hampshire still allow public funding of religious schools/seminaries.
For the courts, the key legal document of concern here ought to be the California Constitution, and the question should be whether that document contains a provision protecting freedom of speech – and it does, specifying “every person” not just adults, as having the right to free speech.
Reason’s McDonald also offers key details on previous court activity in this controversial case.
“In February of this year, district court judge David O. Carter ruled in favor of the defendants, giving ‘great weight to the fact that the students involved were in first grade.’ PLF has appealed the decision, and the case will be heard by the U.S. Court of Appeals for the 9th Circuit. A spokesperson for PLF tells Reason that the case will likely be set for oral argument sometime in 2025.
Judge Carter admitted in his opinion granting summary judgment that ‘B.B.'s intentions were innocent’ but noted that the relevant Supreme Court case law, Tinker v. Des Moines Independent Community School District (1969), ‘does not focus on the speaker's intentions.’
Rather, Tinker held that, while First Amendment protections generally extend to public schools, each case turns on whether the speech in question would ‘significantly interfere with the discipline needed for the school to function.’"
And, of course, both that ruling, and the current matter expose the deeper, logical problem of claiming that there can be any reconciliation of the disparate concepts that all people have the right to free speech and the popular, mistaken, notion that a child has a “right” to education.
Because of the latter, people are forced to pay for an education system that subsequently pools all kids together and utilizes the taxpayer money to create pedagogy that not only might conflict with the taxpayer’s beliefs, but also puts all the kids into the same system.
As a result, even the children, who supposedly have the right to free speech, cannot peacefully exercise their rights whenever and however they choose. Kids who might stand up and offer speeches, or sing, or mumble, according to their individual right to free speech, will disrupt the class, and undermine the intent of the tax-funded pedagogy. And the tax-funding means that everyone who paid taxes also ought to be free to see his or her “speech” and “religious” preferences reflected in the government-use of that tax money.
This Tragedy of the Commons exposes the philosophical lie that statism – the model of the tax-funded polis as “government” – exists to “protect” everyone’s rights. It cannot do so in practice, and it infringes on rights at the outset.
This California case is a perfect example. It’s not just about the interpretation of the words, “any life.” It’s much deeper, and the suit, itself, ought to be remembered as such.
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