California Policy Center Files Amicus Brief Defending Free Speech Rights of Students and Teachers in California Schools

San Francisco — California Policy Center filed an amicus curiae brief Monday in support of the First Amendment rights of a California first grader who was punished by her school after she drew a picture containing the words “Black Lives Mater [sic]… any life.” The school principal disciplined the student by depriving her of recess for two weeks and prohibiting her from drawing. 

Although a district court characterized the girl’s artwork as “innocent” and “well intentioned,” the judge ruled that the drawing was not protected speech and upheld the school’s punishment. The lawsuit against Capistrano Unified School District has now been appealed to the Ninth Circuit. 

“This case is the predictable result of the infusion of racial ideology into California public schools,” said California Policy Center (CPC) attorney Julie Hamill, who filed the amicus brief on behalf of CPC and Californians for Equal Rights Foundation. “Sadly, the free speech rights of students and teachers are being sacrificed on the altar of Leftist politics.”

Unbelievably, the district court in the case cited the New York Times, which deemed a different phrase—“All Lives Matter”—offensive, to support its assertion that the first grader’s speech was not protected. The court opined that “teachers are far better equipped than federal courts at identifying when speech crosses the line from harmless schoolyard banter to impermissible harassment.”

As Hamill explains in the brief: “The district court has thus established a new standard for speech in school, one in which a government official may penalize the ‘innocent’ and ‘well-intentioned’ speech of a child if he alone determines that the child has diverged from an orthodoxy defined by a New York Times article.”

Hamill writes, “[w]ithout robust First Amendment protections, students, teachers and administrators are compelled to think and speak in compliance with a prescribed orthodoxy on racial and social justice issues, lest they risk punishment, even termination.” 

Racial ideology has become a dominant theme in California public education. In 2021, California Governor Gavin Newsom signed AB101 into law, making ethnic studies a high school graduation requirement and mandating it follow the controversial California Department of Education’s Model Curriculum for Ethnic Studies (“ESMC”), which contains such buzzwords as “transformative resistance,” “the four I’s of oppression,” and “counter v. dominant narrative.” 

However, the California Department of Education encourages ethnic studies in elementary school in ESMC Chapter 3, declaring that “[u]nderstanding how race and ethnicity impacts [SIC] society should be an essential core component of every students’ K–12 education experience.”

In addition, the California Teachers Association has become increasingly focused on racial justice activism in schools. 

The result is a dangerous orthodoxy in California’s government schools. The amicus brief cites the following examples: 

• Third graders from Cupertino participated in a math class where they “deconstructed” their racial and social identities based on “power and privilege.” Their teacher explained the students live in a “dominant culture” of “white, middle class, cisgender, educated, able-bodied, Christian, English speaker[s],” who “created and maintained” this culture in order “to hold power and stay in power.”
• In Hayward, elementary school teacher Tiger Craven-Neely was suspended for publicly questioning Glassbrook Elementary’s “Woke Kindergarten” program, including its use of the phrase “so-called United States,” lessons on Woke Kindergarten’s website offering “Lil’ Comrade Convos,” and positing a world without police, money or landlords.
• San Diego Unified School District hired critical race theorist Bettina Love to provide the keynote address at the district’s Principal Institute and district-wide training on how to “challenge the oppressive practices that live within the systems and structures of school organizations.” Teachers subsequently underwent “white privilege” training sessions.

“When the government imposes a political viewpoint in its public schools, cancel culture operates to turn that viewpoint into a government-imposed orthodoxy, which in turn suppresses the speech of students who dare to digress from that orthodoxy,” Hamill writes. “The need to protect speech that deviates from the orthodoxy is particularly acute when the subject is race, because public schools are prohibited from discriminating on that ground.”

“The importance of protecting free expression to counter the dangers of prescribed orthodoxy cannot be overstated, especially in a time of rampant inculcation of K-12 students in social justice activism.”

Read the full amicus brief filed in B.B. v. Capistrano Unified School District, et al here. 

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