Amicus Brief: B.B. v. Capistrano Unified School District

In first grade, B.B. learned about the phrase "Black Lives Matter" from a classroom book, which inspired her to draw a picture with the phrase “Black Lives Mater” (misspelled), alongside the words “any life” and figures representing her friends, including one black classmate. She gifted this drawing to her friend, who took it home. Upon finding the picture, the friend’s mother expressed concerns about racial singling-out, though the friend was not offended. The school, which is located in Orange County, California, then prohibited B.B. from drawing and excluded her from recess for two weeks without notifying her parents.

A year later, after learning about the incident from another parent, B.B.’s mother filed two unsuccessful complaints with the school and subsequently a lawsuit in federal court. In February 2024, the court ruled against B.B., citing her age to deny her free-speech rights and referencing a controversial New York Times article about the phrase "All Lives Matter." This case is now in the Ninth Circuit and our brief highlight that, yes, California, elementary-school students do have First Amendment rights.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Tim Rosenberger is a legal fellow at the Manhattan Institute.

Special thanks to law school associate Trey Hammond.

Photo: Stefania Pelfini, La Waziya Photography / Moment via Getty Images