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From B.B. v. Capistrano Unified School Dist. (C.D. Cal.), decided last month but just posted on Westlaw:

When B.B. was in first grade, she made a drawing (the "Drawing") that included the phrase "Black Lives Mater [sic]" printed in black marker. Beneath that sentence, B.B. added "any life," in a lighter color marker. B.B. gave the Drawing to a classmate, M.C., who took it home. When M.C.'s mother saw the Drawing, she emailed the school, stating that she would not "tolerate any more messages given to [M.C.] at school because of her skin color" and that she "trust[ed]" the school would address the issue.

Later that day, the school's principal, Becerra, approached B.B. at recess. Becerra told B.B. that the Drawing was "inappropriate" and "racist," and that she was not allowed to draw anymore. {At the hearing, the parties disputed whether B.B. testified that Becerra told her the Drawing was racist. Although B.B.'s deposition is unclear, the Court must construe her testimony in the light most favorable to B.B.} He also instructed B.B. to apologize to M.C., which B.B. did twice.

When B.B. returned to class from recess, two of her teachers told her that she was not allowed to play at recess for the next two weeks. The teachers did not tell B.B. the reason she could not play at recess, and there is no direct evidence that Becerra directed B.B.'s teachers to punish B.B. in this way.

Plaintiff [B.B.'s mother] argues that Becerra's response to the Drawingcompelling her to apologize to M.C., prohibiting her from drawing other pictures for her friends, and preventing B.B. from playing at recess for two weeksviolates her First Amendment right to free speech. However, this schoolyard dispute, like most, is not of constitutional proportions.

Although students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," their rights are "not automatically coextensive with the rights of adults in other settings." For school children, the First Amendment must be "applied in light of the special characteristics of the school environment." Because educators best understand those special characteristics, courts give "educators substantial deference as to what speech is appropriate." "[T]he determination of what manner of speech is inappropriate" at school "properly rests with the school board, rather than with the federal courts."

"Under Tinker [v. Des Moines Indep. School Dist. (1969)], schools may restrict speech that 'might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities' or that collides 'with the rights of other students to be secure and let alone.'"

Much of the caselaw applying Tinker focuses on its "substantial disruption" prong. As a result, "[t]he precise scope of Tinker's 'interference with the rights of others' language is unclear." However, the cases reveal three principles that help identify when speech unduly infringes on the rights of other students such that it is not protected under the First Amendment.

First, where speech is directed at a "particularly vulnerable" student based on a "core identifying characteristic," such as race, sex, religion, or sexual orientation, educators have greater leeway to regulate it. Although speech that is "merely offensive to others" cannot be regulated, courts have recognized that denigrations based on protected characteristics do more than offendthey can inflict lasting psychological harm and interfere with the target student's opportunity to learn. These types of denigrations, moreover, have little countervailing benefit to the learning environment. Derogatory speech is therefore "not the conduct and speech that our educational system is required to tolerate, as schools attempt to educate students about 'habits and manners of civility' or the 'fundamental values necessary to the maintenance of a democratic political system.'" Thus, "[w]hatever the outer boundary of Tinker's interference inquiry," the case law "establish[es] that students have the right to be free" from speech that "denigrate[s] their race" while at school.

Second, the mere fact that speech touches upon a politically controversial topic is not sufficient to bring it under the First Amendment's protective umbrella. In Harper, for instance, the district court denied a preliminary injunction brought by a student who was told that he could not wear a homophobic shirt to school. The Ninth Circuit affirmed the district court despite the "political disagreement regarding homosexuality" that existed at the time. At the same time, however, school administrators must have a justification above the "mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint" before they may regulate student speech.

Third, and most pertinent for the present case, age is an important factor when deciding whether speech is protected. In Tinker, the Court held that a high school could not ban students from wearing black arm bands that signaled opposition to the Vietnam War. The Court emphasized that denying students this type of expressionwhich neither interfered with the school environment nor intruded on other students' rightsmay coerce political orthodoxy and "strangle the free mind" of high school students. An elementary school, by contrast, is not a "marketplace of ideas." 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. As the Seventh Circuit has recognized, elementary schools "are more about learning to sit still and be polite, rather than robust debate." To fulfill that mission, elementary schools require significant latitude to discipline student speech. Indeed, "muchperhaps mostof the speech that is protected in high grades" may be regulated in elementary schools.

"The targeted student's age is also relevant to the analysis." Younger students may be more sensitive than older students, so their educational experience may be more affected when they receive messages based on a protected characteristic. Relatedly, first graders are impressionable. If other students join in on the insults, the disruption could metastasize, affecting the learning opportunities of even more students.

Giving great weight to the fact that the students involved were in first grade, the Court concludes that the Drawing is not protected by the First Amendment. B.B. gave the Drawing to M.C., a student of color. The Drawing included a phrase similar to "All Lives Matter," a sentence with an inclusive denotation but one that is widely perceived as racially insensitive and belittling when directed at people of color. Indeed, M.C.'s mother testified that those kinds of messages "hurt." Soon after discovering the Drawing in M.C.'s backpack, M.C.'s mother emailed the school, and stated that she believed her daughter received the Drawing because of her race. Based on this email and the content of the Drawing, Becerra concluded that the Drawing interfered with the right of M.C., a first grader, "to be let alone."

{The phrase "All Lives Matter" gained popularity in response to the growth of the Black Lives Matter movement ("BLM"), a social movement protesting violence against Black individuals and communities, with a focus on police brutality. "All Lives Matter" can be seen as an offensive response to BLM because that phrase obscures "the fact that [B]lack people have not yet been included in the idea of 'all lives.'"}

Undoubtedly, B.B.'s intentions were innocent. B.B. testified that she gifted the Drawing to M.C. to make her feel comfortable after her class learned about Martin Luther King Jr. But Tinker does not focus on the speaker's intentions. Rather, it examines the effects of speech on the learning environment and other students, giving deference to school officials' assessments about what speech is acceptable in an educational setting. Such deference to schoolteachers is especially appropriate today, where, increasingly, what is harmful or innocent speech is in the eye of the beholder. Teachers are far better equipped than federal courts at identifying when speech crosses the line from harmless schoolyard banter to impermissible harassment. Here, Becerra concluded that the Drawing, although well-intentioned, fell on the latter side of that line.

A parent might second-guess Becerra's conclusion, but his decision to discipline B.B. belongs to him, not the federal courts. Elementary schoolteachers make thousands of disciplinary decisions on American playgrounds every day. Federal court review of all these decisions would unduly interfere with school administration and overwhelm the judiciary. Regardless of whether Becerra was right or wrong, the decision is his, and this schoolyard disputelike mostdoes not warrant federal court intervention.

This seems to me unconstitutional, even in first grade. One can debate whether the First Amendment should apply to disciplinary decisions by K-12 schools (Justice Black, back in his day, argued it shouldn't, and so has Justice Thomas more recently); one can likewise debate whether it applies in the lowest grades. But the courts have not so held, and the premise of this particular court opinion seems to be that some first-grader speech, if approved of by a federal court, would indeed be protected. (The standards courts have set, which is that speech can be punished if it "materially disrupts classwork," sets a much higher bar that seems to be shown here.)

Rather, the court's view here seems to be that this viewpointsimply because it "can be seen" as dissenting from what some see as the only proper response to racial problemsis stripped of First Amendment protection. The "Black Lives Matter" slogan is accepted as the one orthodoxy, and any perceived dissent from the view that black lives should be specially stressed in this context can be forbidden. Seems quite inconsistent with the Court's conclusion that "In our system, state-operated schools may not be enclaves of totalitarianism."

See the original post here:
"Black Lives Mat[t]er" + "Any Life" Drawing "Not Protected by the First Amendment" in First Grade - Reason

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The Advanced Placement (AP) Program, run by the non-profit organizationThe College Board, has issued itsfinal 20242025school year guidelines. The AP African American Studies course has been hotly debated since Florida Governor. and fading candidate for the Republican nominee for President injected himself and decided the previous version would not be taught in Florida because it didnt align with his desires.

In the final version, the AP course makes the teaching of the Black Lives Matter movement optional. At the same time, mandatory learning includes NFL players taking a knee on the sidelines during the National Anthem.Which of these two has had the most impact on American history?The issue of reparations has also been made optional.Both Black Lives Matter and reparations were initially considered Essential Knowledge by the College Board but became optional after pressure from DeSantis and other politicians.

The State of Florida had previously issued its Social Studies Guidelines, including Black History. To its credit, theFlorida guidelinesare surprisingly comprehensive, covering a wide range of topics and individuals yet promoting a theme that makes white people look better and highlighting the activities of white abolitionists, who are the storys heroes.My biggest objection was the repeated reference to natural reproduction, which explains away the fantastic increase in the number of domestic-bred enslaved people instead of properly attributing it to forced breeding and rape.

The public debate between DeSantis and The College Board seemed to presume that the AP Program was proposing a complete and accurate version of Black History while DeSantis wished to gut the program. The new AP version is as disingenuous as was Florida when discussing whatsome historiansrefer to as natural increase and what Florida calls natural reproduction. Heres the only mention of this in the AP guidelines.

Even after the 1808 ban against importing enslaved Africans, the number of enslaved Africans in the United States increased steadily throughout the nineteenth century as children of enslaved people were born into enslavement themselves, such that 4 million Africans remained enslaved in the United States about 50 percent of all enslaved people in the Americas by the time of the Emancipation Proclamation.

The AP program mentions the word rape twice, whereas Florida doesnt mention rape at all. The AP says that some slave women were raped during the Mid-Atlantic Passage and that there were no laws against rape of enslaved women in the country.

Aboard slave ships, Africans were humiliated, beaten, tortured, and raped, and they suffered from widespread disease and malnourishment. About 15 percent of captive Africans perished during the Middle Passage.

Laws against rape did not apply to enslaved African American women.

What both Florida and The College Board are unwilling to say out loud is that not only was a significant foundation of America built on the backs of enslaved people.Americas labor force was increased by forced breeding and rape.Thomas Jefferson ended the International Slave Trade in 1807 as a protectionist measure to increase the value of domestic-bred slaves. Jefferson wrote George Washington explaining that a Black woman having a child every two years was of greater value than any field hand and would increase profits by 4%.

Ill be reviewing the entire 294-page AP Guidelines to see what else they say (and omit) about Black history. Assuming they got it right might have given them too much credit.

This post was previously published on MEDIUM.COM.

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AP Black History Program Makes Discussing Black Lives Matter Optional and Won't Mention Rape - The Good Men Project

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The aftershocks of George Floyds death are still reverberating for Home Depot. Godofredo A. Vsquez-Pool/Getty Images

by Michael Z. Green, Texas A&M University

A Home Depot store violated labor law when it disciplined Antonio Morales, the National Labor Relations Board ruled on Feb. 21, 2024.

Morales, a Home Depot employee in the Minneapolis area, had drawn the letters BLM on a work apron and refused to remove them. BLM stands for the Black Lives Matter movement, which campaigns against violence and systemic racism aimed at Black people. Morales ultimately quit because of pressure to end the use of BLM messaging.

The NLRB has now ordered Home Depot to rehire Morales based on the legal right U.S. employees have to engage in concerted activity for the purpose of mutual aid or protection.

As a legal scholar who has studied issues of race in the workplace for more than 20 years, I believe the Home Depot decision establishes an important precedent for workers who express broad concerns about systemic racism.

This decision indicates that employees have a right to demonstrate their support for the Black Lives Matter movement on the job if they are seeking to improve their own working conditions with respect to racial discrimination. And this right persists even if the messaging arguably has political connotations that some workers or customers might disagree with.

The National Labor Relations Board is the federal agency that conducts elections when employees seek to be represented by a union. It also prosecutes and adjudicates complaints filed against employers and unions based upon unfair labor practices as defined by the National Labor Relations Act.

Workers have the right to display slogans related to working conditions when theyre on the job under Section 7 of that law, which was enacted in 1935. Section 7 protects the rights of employees to wear and distribute items such as buttons, pins, stickers, t-shirts, flyers, or other items displaying a message relating to terms and conditions of employment, unionization, and other protected matters.

In this Home Depot case, the NLRB reviewed a preliminary decision issued in 2022 by Paul Bogas, an NLRB administrative law judge. Bogas found that Home Depots ban on manifestations of support for the Black Lives Matter movement didnt violate labor law.

The NLRB disagreed with the decision by Bogas in a 3-1 decision that cited a 1978 Supreme Court precedent.

In that case, Eastex Inc. v. National Labor Relations Board, the court found that workers distributing materials related to their terms and conditions of employment are protected by Section 7 when there is a reasonable and direct connection to the advancement of mutual aid and protection in the workplace.

That ruling held that this protection exists even when political messages may be involved in the workers communications. Moreover, what may be viewed as political in one context can be viewed quite differently in another, the Supreme Court held.

At the Home Depot in question, Morales and other employees had previously discussed concerns about racial misconduct by a supervisor and two separate incidents of destroying a display of Black History Month materials the workers had created to celebrate Black culture.

Employees had a right to express their support for BLM messaging in the workplace because they had already objected to working conditions based upon racial concerns, the NLRBs majority ruled.

One of the NLRBs four members, Marvin Kaplan, based on his different view about the purpose of Morales display of the BLM messaging. Morales was expressing support for the Black Lives Matter movements goal of combating police violence against Black individuals not with improving terms and conditions of employment, Kaplan wrote.

Morales show of support for the Black Lives Matter movement in the workplace was hardly an outlier.

Many Black Americans began to speak out about racism and discrimination by discussing BLM in their workplaces amid the widespread protests that followed George Floyds murder by police officers on May 25, 2020, in Minneapolis.

A year after Floyd was killed, a poll found that 68% of Americans thought that employees should be able to discuss racial justice issues at work.

Employees who wanted to show their support for BLM at work have in recent years met resistance from other employers besides Home Depot, including the Publix and Fred Meyer supermarket chains.

Some companies have said their bans on workers displaying BLM insignia were intended to prevent disruptive responses by other workers and customers who may not agree with the movements message.

Legal decisions about this issue have been mixed so far.

A court found that a Pennsylvania government agency violated the First Amendment when it prohibited workers from wearing face masks emblazoned with BLM messaging during the COVID-19 pandemic.

But Whole Foods has prevailed against workers in similar cases. An NLRB administrative law judge found that its employees had worn BLM insignia merely as a political statement unrelated to their working conditions.

That preliminary decision is now in question after the NLRBs final ruling about the same issue in the Home Depot dispute.

Whole Foods workers asserted in a separate legal challenge that their employers ban on wearing BLM insignia represented racial discrimination under federal law. In that case, the court found that the employees had failed to prove that the ban had a racial motivation.

Whole Foods was instead seeking to stop expression of a politically charged and controversial message by employees in its stores, according to the court.

One interesting aspect of these cases is the apparent contradictions involved.

After Floyds death, many big companies proclaimed their commitment to fight racism and promised to do a better job of supporting diversity, equity and inclusion efforts.

Home Depot, for example, expressed its anguish over the senseless killing of George Floyd and other unarmed Black men and women in our country. The company explained how it had established worker programs to facilitate internal town halls to share experiences and create better understanding.

Amazon, which owns Whole Foods, made a similar statement, along with a pledge to donate US$10 million to organizations that are working to bring about social justice and improve the lives of Black and African Americans.

To be sure, this NLRB decision isnt the final word on this issue, because Home Depot has filed an appeal.

Regardless of how the courts respond, the NLRBs decision is historic. The labor panel has established that a workers support for Black Lives Matter in the workplace isnt merely an expression of their political beliefs.

Michael Z. Green, Professor of Law and Director, Workplace Law Program, Texas A&M University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Employees have a right to express support for Black Lives Matter while they're on the job, according to a historic labor ... - New Pittsburgh Courier

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Artists and volunteers work on a mural that reads Black Lives Matter on Hamilton Avenue in front of Palo Alto City Hall on June 30, 2020. Each artist was assigned one letter in the mural to paint in their own style. Photo by Magali Gauthier.

Seeking to avoid a summer trial, Palo Alto is asking the courts for a quick ruling on a lawsuit from a group of police officers who claim they were offended by a Black Lives Matter mural that 16 artists painted in front of City Hall in June 2020.

The citys attorney, Suzanne Solomon from the firm Liebert Cassidy Whitmore, filed a motion on Feb. 28 requesting that the Santa Clara County Superior Court issue a summary judgment in May, a ruling that would obviate the need for a two-week trial that is currently scheduled for June 10.

She has asked the court to schedule a hearing on the request on May 28. If the court opts to move ahead with the trial, Solomon has asked that the trial be postponed until June 28 to comply with a 30-day requirement for summary judgments.

The City Council is scheduled to discuss the latest developments in the case in a March 11 closed session.

The six officers Eric Figueroa, Michael Foley, Robert Parham, Julie Tannock, Christopher Moore and David Ferreira filed their lawsuit in July 2021, about a year after the city commissioned artists to paint the mural along Hamilton Avenue, between Ramona and Bryant Streets.

Each of the 16 artists (or, in some cases, artist teams) was commissioned to paint a single letter of BLACK LIVES MATTER. The city removed the mural in the first week of November 2020 with the goal of eventually creating a more permanent art installation.

The mural was part of the citys effort to address nationwide calls for social justice in after George Floyd was murdered by a Minnesota police officer on May 25, 2020. While the mural was only up for about four months, the litigation stemming from the artwork has been winding its way through the legal system for three years. The plaintiffs have maintained that the mural represented a form of harassment. They specifically objected to two images, which are contained in the letters E and R of MATTER.

The E featured Assata Shakur, a civil rights activist and member of the Black Liberation Army who became a fugitive after she was convicted in 1977 of killing a New Jersey state trooper. The R included an image of a black panther, an emblem of the Black Panther Party. In their lawsuit, the police officers claimed the image alludes to the New Black Panther, an antisemitic organization that has been designated a hate group by the Southern Poverty Law Center and that has been disavowed by the original Black Panthers.

In March 2022, the Santa Clara County Superior Court rejected an argument from the officers that the citys failure to immediately remove the images constituted workplace discrimination. Judge Socrates Manoukian also found no evidence that the city had engaged in discriminatory conduct or that its failure to remove the mural had anything to do with the officers race, ethnicity or some other protected classification.

But in July of that year, Manoukian rejected the citys position that the officers claim does not state facts sufficient to constitute a cause of action and allowed the case to move forward.

It is not difficult for this court to conclude that by allowing the mural to be posted in its current location, a reasonable jury could conclude that the behavior by the City was outrageous because it abused its relationship with its valuable employees, should have suspected that the plaintiffs were susceptible to injuries through mental distress; or that the city acted intentionally or unreasonably with the recognition that the act would be likely to result in illness through mental distress, Manoukian wrote in the July 5, 2022, ruling.

The citys latest filing seeks to expedite the resolution of the case by requesting a summary judgment on the officers only remaining cause of action: the allegation that the citys decision to keep the mural constitutes harassment that violates the Fair Employment and Housing Act.

In making the argument, Solomon disputed the notion that the mural is objectively offensive.

No reasonable person would have considered public speech on a sidewalk during the summer of 2020, when the entire Country was focused on its history of racial injustice, to be hostility directed toward them personally because they are not African-American, Solomon wrote in her brief. In any event, they were reassured by the City Manager that the City valued their dedication and hard work, and that the City was not endorsing Ms. Shakurs past acts.

She noted that the mural posed no actual physical threat and did not urge anyone to take any action in relation to Plaintiffs due to their races. In fact, the only words in the letter E were, WE MUST LOVE EACH OTHER AND SUPPORT EACH OTHER.

Solomon argued in her new motion that the city is entitled to legislative immunity for all claims relating to the mural because the artwork was made in response to a City Council enactment. She also argued that the city could not have altered the mural without violating the artists First Amendment rights.

She dismissed as false the assertion by the officers that the panther in the R references the New Black Panther Party and argued that it in fact alludes to the original Black Panther Party, which is not a hate group. One of the artists who had painted the letter had similarly told this publication shortly after the lawsuit was filed that he was inspired by the Black Panther Party.

Solomon also took issue with the idea that the Shakur painting somehow discriminates against the officers because of their races. The officers identify as Caucasian, Filipino, Asian and Hispanic, according to the filing.

Plaintiffs attempt to recast their offense as being race-based because the police officer Ms. Shakur was convicted of killing was Caucasian, the Solomon motion states. Plaintiffs believe that the murder was race-based, but their unsupported belief does not transform the message of the letter E, which is racially neutral and urges love and support, presumably for everyone.

She also noted that while the plaintiffs see Shakur primarily as a killer, others see her as a civil rights icon. Cece Carpio, the Oakland-based artist who painted the E, explained her decision to paint Shakur in an email to the city shortly after the officers demanded that the letter be removed.She wrote that she felt it was important to represent the words and wisdom of Assata, who has been a political refugee since 1979.

Assata was a target of policing and COINTELPRO, and is still a target of the policing and the US government, Carpio wrote, referring to the surveillance program of political organizations that the FBI conducted between 1956 and 1971. They see her involvement with the Black liberation movement as a threat to the status quo. Just as they see the movement to defend Black lives as a threat to racial capitalism and white supremacy.

But some in the Police Department saw things differently. Anthony Becker, former president of the Palo Alto Police Officers Association, wrote several emails to City Manager Ed Shikada in July 2020 asking that the mural be removed. The exchanges between Becker and Shikada are included in the exhibits that Solomon had submitted as part of her request for a summary judgment.

The men and women of the PAPOA deserve better, Becker wrote. This portion of the mural is intimating (sic), threatening and promotes violence. To allow such an image to be displayed takes away from the message of the mural.

Shikada responded by noting that the art in the mural was based on a selection process managed by the citys Public Art Commission, a process designed to prevent politicians and bureaucrats from making design decisions.

This is a wise rule, Shikada wrote. As a consequence, however, we open the door to diverse perspectives like the mural. Some have called it brilliant and beautiful, while others have called it idiocy and an insult. Personally, I call it art something I perceive in my own way while understanding that others may see it differently.

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City seeks to avoid trial over Black Lives Matter mural - Palo Alto Online

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Can Employers Ban Workers From Wearing Black Lives Matter Insignia To Protest Discrimination At Work? - Employee ...  Mondaq News Alerts

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Can Employers Ban Workers From Wearing Black Lives Matter Insignia To Protest Discrimination At Work? - Employee ... - Mondaq News Alerts

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