[00:00:03] Speaker 04:
So each side has 20 minutes.

[00:00:05] Speaker 04:
And just for just a quick question, it's just one side's arguing on each side, right?

[00:00:16] Speaker 04:
No one's splitting time.

[00:00:18] Speaker 04:
OK.

[00:00:18] Speaker 04:
Thank you.

[00:00:20] Speaker 04:
All right.

[00:00:20] Speaker 04:
Go ahead.

[00:00:21] Speaker 04:
Proceed.

[00:00:22] Speaker 00:
Good morning, Your Honors, and may it please the court.

[00:00:24] Speaker 00:
Caleb Trotter for Appellant Beebe.

[00:00:26] Speaker 00:
I'll keep an eye on the clock, but I'll try to reserve five minutes for rebuttal.

[00:00:29] Speaker 00:
OK.

[00:00:29] Speaker 00:
Thank you.

[00:00:31] Speaker 00:
This case is about a first grader's innocent drawing given to a classmate in an act of friendship and kindness.

[00:00:38] Speaker 00:
A full-size color image of the picture is on page 117 of the supplemental excerpts of record.

[00:00:45] Speaker 00:
Bebe made this drawing when she was in first grade after being introduced to the concept of Black Lives Matter by her teacher and be made to feel bad for a classmate because of her race.

[00:00:56] Speaker 00:
Despite everyone, Bebe, her classmates' parents,

[00:00:59] Speaker 00:
and even Principal Becerra himself agreeing that Beebe was only trying to be nice to her classmate with this drawing, Becerra took it upon himself to punish her for it.

[00:01:10] Speaker 00:
She was compelled to apologize.

[00:01:12] Speaker 00:
She was prohibited from giving any future drawings to her classmates.

[00:01:16] Speaker 00:
And she was made to sit out of recess for two weeks, forced to sit on the sidelines and watch her classmates play without her.

[00:01:23] Speaker 04:
But just in the factual part of this here,

[00:01:27] Speaker 04:
It's my understanding that, and I don't know exactly who said it, but there's all inferences at a summary judgment stage or whatever that the drawing, it was said that she was told the drawing was racist and inappropriate.

[00:01:43] Speaker 00:
Correct, Your Honor.

[00:01:44] Speaker 04:
That's part of your facts that you get to assume, correct?

[00:01:49] Speaker 00:
Exactly.

[00:01:51] Speaker 04:
So tell me about, I noticed in 2024 there's,

[00:01:56] Speaker 04:
A lot that says you can't have kids sit out for recess basically unless there's some imminent threat or whatever.

[00:02:04] Speaker 04:
What was the status of recess back then.

[00:02:08] Speaker 00:
I'm not exactly sure of the answer to your honor's question but I know that in 2021 in the events of this of this case the children were going outside for recess.

[00:02:20] Speaker 04:
Well, I know they were taking recess, but this law in 2024 says you can't punish a kid and take away the recess unless you can, it's a very high standard of imminent threat and all of that.

[00:02:34] Speaker 04:
So clearly, they probably could not meet that standard by that 2024.

[00:02:40] Speaker 04:
But I'm wondering what the school policy at the time was if you took away recess from a kid.

[00:02:45] Speaker 04:
Is that anywhere in the record?

[00:02:47] Speaker 00:
I think what we have in the record is on page three of our further excerpts of record, which is the school's policy on student speech, including which circumstances the school may punish students for their speech.

[00:03:02] Speaker 00:
And I think plainly on this record, Principal Becerra violated that policy.

[00:03:06] Speaker 00:
The policy cites Tinker as well as many other established cases on school speech, setting forth very strict guidelines for when students can be punished.

[00:03:18] Speaker 00:
And that's going to be an important theme throughout this case is the difference between preventing speech that may be disruptive or interferes with the rights of others and punishing speech.

[00:03:29] Speaker 03:
Let me just tell you, this case is incredibly troubling to me.

[00:03:34] Speaker 03:
We have facts in this case about six-year-old being deposed and the sort of heightened level of animosity over something that is a drawing.

[00:03:49] Speaker 03:
There's all sorts of things about this case that are incredibly troubling to me and sad.

[00:03:56] Speaker 03:
But the reality is that the law that we are going to be deciding in this case is going to have impact down the road

[00:04:04] Speaker 03:
And this might be a case where the quintessential saying bad facts make bad law might come into play.

[00:04:11] Speaker 03:
And I really sort of want to test with you what the limits of your broad interpretation of Tinker might result in down the road if we sort of accept that, you know, Tinker massively limits the ability of elementary schools to be able to have some level of,

[00:04:32] Speaker 03:
to restrict some level of speech.

[00:04:34] Speaker 03:
So I'm going to ask you a hypothetical, and I'd like to know how you would answer this question.

[00:04:40] Speaker 03:
So if an elementary school teacher was facilitating a lesson about dinosaurs, let's say, a kindergarten teacher, a first grade teacher, and they said, I want the class to draw dinosaurs.

[00:04:54] Speaker 03:
And instead, a student decided to draw a bird or a dog or something that's clearly not a dinosaur.

[00:05:01] Speaker 03:
And the teacher were to say, you know, that's not the lesson.

[00:05:06] Speaker 03:
You can't draw that.

[00:05:08] Speaker 03:
We're doing a lesson on dinosaurs.

[00:05:11] Speaker 03:
But the student drew something that was clearly outside what the lesson was requiring.

[00:05:16] Speaker 03:
Would that student be able to sue the school alleging that the teacher violated her First Amendment rights by suppressing her speech?

[00:05:25] Speaker 00:
Well, they may be able to sue, but I think that student would clearly lose under the Supreme Court's Hazelwood v. Kohlmeyer line.

[00:05:31] Speaker 00:
That's the line of cases that deal with school-sponsored speech, school curriculum.

[00:05:37] Speaker 00:
That's a much higher bar, significant deference to the school to determine what the curriculum would be.

[00:05:42] Speaker 03:
I'm not sure I'm really understanding what the distinction here is.

[00:05:45] Speaker 03:
Are you suggesting that here in this particular case,

[00:05:50] Speaker 03:
the speech was not related to, that the fine line we're supposed to draw is that if it occurred outside of a clear lesson that was being taught, or that was part of the curriculum somehow, now the curtailing of the speech is impermissible, whereas if a teacher is conducting a lesson, then there is broader protection for curtailing speech?

[00:06:12] Speaker 00:
What we're contending is, and the deposition testimony in the record of this case bears this out, is that BB testifies that

[00:06:19] Speaker 00:
There was a book that was taught to her class, read to her class, introduced the students to Black Lives Matter, All Lives Matter.

[00:06:27] Speaker 00:
Her drawing was done in response to that material.

[00:06:31] Speaker 00:
So this material was introduced by the teacher to the students itself.

[00:06:36] Speaker 00:
So the drawing was responding to that, and that would be

[00:06:40] Speaker 00:
completely permissible in line with responding to the school curriculum.

[00:06:44] Speaker 00:
So I think that would be, this case is very different from your honor's dinosaur hypothetical where the material was completely outside and different from what was proposed.

[00:06:54] Speaker 03:
So you're acknowledging and you agree that there are certain things that first graders can say or draw that are not protected under the First Amendment?

[00:07:04] Speaker 00:
Clearly, yes.

[00:07:05] Speaker 00:
And even under Tinker,

[00:07:07] Speaker 00:
But the standard for the school under Tinker is to put forward evidence that to prohibit speech, there must be evidence that it would be substantially disruptive or interfere with others, and then same for punishment.

[00:07:20] Speaker 00:
So while yes, objectively schools can, it's not an all or nothing scenario here, but the school has a burden.

[00:07:28] Speaker 03:
And so your view is that it's possible for

[00:07:31] Speaker 03:
the defendants in this case to still be able to put forward that case.

[00:07:35] Speaker 03:
But you're saying, because we're on summary judgment, when we view the facts in a light most colorable or favorable to your position, we have to allow that test to be sorted out post summary judgment.

[00:07:50] Speaker 00:
Precisely, Your Honor.

[00:07:50] Speaker 00:
And I appreciate the question.

[00:07:52] Speaker 00:
I know both parties spent a lot of space and ink on the intricacies of the First Amendment arguments here.

[00:07:58] Speaker 00:
I think we do have a couple

[00:08:00] Speaker 04:
lack for a better phrase easy way outs for this court to resolve the appeal of the state yeah i think part of what what would have to from the standpoint do we have to decide that six-year-olds have first amendment rights yes we do at least have to decide that much so there's there's a lot of ink on the fact clearly i think that you do have the inferences that there were lessons this was response and

[00:08:29] Speaker 04:
Are the parties, I understood that the, is the other side agrees that this drawing is speech?

[00:08:40] Speaker 04:
Is there a dispute between the parties on that?

[00:08:42] Speaker 00:
I don't think so, because they have acknowledged that Tinker is the appropriate standard here, which of course governs pure speech.

[00:08:50] Speaker 04:
Well, so there's a lot of discussion about the fact that this child doesn't really

[00:08:55] Speaker 04:
Well, clearly there's an inference that the child is responding to something that the school has introduced.

[00:09:00] Speaker 04:
Now, if the child had said, for example, after hearing this, and I heard of someone that their child did this in class and said, well, does my life matter?

[00:09:13] Speaker 04:
Would that be speech on the part of a student?

[00:09:15] Speaker 04:
In the discussion of if you introduce that subject in class, and then one of the students says, well, does my life matter?

[00:09:23] Speaker 04:
And the teacher found that offensive.

[00:09:26] Speaker 04:
is that speech, it seems responsive to what they're discussing, but does your age have, it's like, if you don't understand why it's upsetting someone to say that, but that's what your feeling is, are we saying, I think Judge Desai was saying, well, how broadly do we go on this, but basically,

[00:09:54] Speaker 04:
If someone's six, if they do something in response to a discussion that's been had, are we saying, not all six-year-olds, we're not saying every six-year-old, every situation has a First Amendment right, but you're saying in this situation that child was making a statement of how she felt and what she had heard.

[00:10:16] Speaker 00:
Yes, I think that would clearly be speech, but that's not the end of the court's inquiry.

[00:10:22] Speaker 04:
The inquiry would be... Yeah, I'm a principal's daughter, okay, and I tried to stay out of the principal's office, which I did successfully my entire life.

[00:10:30] Speaker 04:
But that being said, schools obviously are faced with a lot of situations.

[00:10:36] Speaker 04:
It doesn't seem to me that, and then in this situation, we know that the parent of the friend,

[00:10:45] Speaker 04:
contacted the school and said something to the effect of, I found this in my daughter's backpack.

[00:10:50] Speaker 04:
I don't want my daughter being singled out for race.

[00:10:55] Speaker 04:
And so it would seem, if I were the principal, that I would need to at least respond to that parent.

[00:11:03] Speaker 04:
Now, we could look at this and say, well, that the response is wrong.

[00:11:07] Speaker 04:
But how does that fit into this whole analysis here?

[00:11:14] Speaker 04:
Obviously, the mother of Bibi wasn't contacted.

[00:11:17] Speaker 04:
They didn't put both parents in the office and say, hey, we had this little situation in class, and how do we want to handle it?

[00:11:27] Speaker 04:
But I think the principal, any time a parent complains to you or contacts you, you kind of have to have a little response.

[00:11:34] Speaker 04:
So what was wrong with what the principal did here?

[00:11:36] Speaker 00:
There was absolutely nothing wrong with the principal investigating to find out what happened.

[00:11:42] Speaker 00:
What was the story behind this drawing?

[00:11:45] Speaker 00:
The problem arised when he punished Beebe solely for this speech that everyone, including Principal Becerra himself, has acknowledged was innocent.

[00:11:55] Speaker 00:
So that's where the line has to be drawn, is that the punishment for the speech.

[00:12:02] Speaker 04:
The speech being innocent doesn't equate to the speech being protected, right?

[00:12:08] Speaker 04:
But we're saying it's speech.

[00:12:10] Speaker 04:
But it seems like a lot of people are talking about, well, she doesn't even know what she's talking about.

[00:12:14] Speaker 04:
How can we give this child First Amendment protection?

[00:12:18] Speaker 04:
Because she just, she's like drawing pictures, you know?

[00:12:25] Speaker 04:
But I think you could make an argument that she's responding to what they said, and that was at her age-appropriate level, saying, well, this is what I'm hearing you say.

[00:12:37] Speaker 04:
And the argument could be made that if adults had this discussion about Black Lives Matter versus any lives matter or all lives matter, it's kind of a, it is sort of a trigger.

[00:12:53] Speaker 04:
Not everyone agrees on this as adults, what exactly that means.

[00:12:59] Speaker 04:
So if it were t-shirts with older students, the school might be able to say,

[00:13:05] Speaker 04:
That subject, we don't really want to, we don't want to wear t-shirts and bring up that subject.

[00:13:12] Speaker 04:
So could the principal then say, okay, no, you can't have t-shirts with My Life Matters or Any Lives Matter or All Lives Matter and Black Lives Matter because we know that might cause problems.

[00:13:25] Speaker 00:
So it depends.

[00:13:26] Speaker 00:
It's of course a fact-based case-by-case inquiry.

[00:13:30] Speaker 00:
And to step back, there are two steps here.

[00:13:32] Speaker 00:
Step one is, is there speech

[00:13:35] Speaker 00:
at issue here.

[00:13:37] Speaker 00:
I think everyone has agreed that there is at least speech.

[00:13:39] Speaker 00:
We, of course, dispute the district court's views on age, but I think everyone can agree that there is speech here.

[00:13:47] Speaker 00:
But that's not the end of it.

[00:13:48] Speaker 00:
Wait a minute.

[00:13:49] Speaker 03:
What do you mean by that?

[00:13:49] Speaker 03:
You dispute the district court's statements about age.

[00:13:52] Speaker 03:
Are you saying that age should not be a factor when we're considering the breadth and scope of Tinker's application here?

[00:13:59] Speaker 00:
Absolutely not, Your Honor.

[00:14:01] Speaker 03:
age is certainly relevant to the analysis of... In fact, I mean, a number of our other circuits in this country have sort of held kind of the opposite of what you're arguing here, which is that to the extent that Tinker applies, any protection is incredibly narrow because at a young age, there is a greater, you know, a policy supporting

[00:14:24] Speaker 03:
regulation of speech in schools.

[00:14:27] Speaker 03:
You'd agree with that, right?

[00:14:29] Speaker 00:
I do agree with that.

[00:14:30] Speaker 00:
And we're not disputing that age is a relevant factor.

[00:14:33] Speaker 00:
It, of course, is.

[00:14:34] Speaker 00:
But it's relevant in determining whether the speech would be disruptive or interfere with the rights of others.

[00:14:40] Speaker 00:
Obviously, that answer is going to be different in a first grade versus a 12th grade classroom.

[00:14:46] Speaker 00:
But what we dispute with the district court was, in our reading, the district court essentially used age as a dispositive factor.

[00:14:54] Speaker 00:
and also failed to construe the record in the light and was favorable to BB in doing so.

[00:15:00] Speaker 03:
So you're contesting sort of like a bright line rule that if there is a certain, if we're talking about first graders then all regulation is permissible on speech.

[00:15:11] Speaker 03:
That's what you're saying is not okay.

[00:15:14] Speaker 03:
You're still saying we need to go through the Tinker.

[00:15:16] Speaker 03:
There still needs to be an evidentiary adjudication with respect to the Tinker film.

[00:15:24] Speaker 00:
Exactly.

[00:15:25] Speaker 00:
And our two best cases are, of course, the Supreme Court's West Virginia v. Barnett case.

[00:15:30] Speaker 00:
There were eight and nine-year-olds involved there.

[00:15:32] Speaker 00:
That was the Pledge of Allegiance class.

[00:15:34] Speaker 00:
Their right to not engage in the Pledge of Allegiance was protected.

[00:15:38] Speaker 00:
And even this court's decision, the CR v. Eugene School District, that involved some sixth graders, so first to sixth grade.

[00:15:45] Speaker 00:
So it's not true that only high schoolers have this

[00:15:50] Speaker 00:
Have a right to speech granted.

[00:15:52] Speaker 00:
It is a fact for the age council.

[00:15:54] Speaker 02:
What remedy is your client seeking?

[00:15:57] Speaker 00:
So at this stage.

[00:15:58] Speaker 00:
We are only on appeal of defendants motion for summary judgment So our remedy is just to vacate that grant of summary judgment as premature and remand to the district court for trial Okay, big picture then let's assume.

[00:16:11] Speaker 02:
We we agree with your client We remand what what remedy is your client seeking these kids are now?

[00:16:18] Speaker 02:
What fourth fifth grade?

[00:16:20] Speaker 02:
Fifth grade the state law claims for emotional distress are gone.

[00:16:24] Speaker 02:
There's no record of discipline affecting BB's future There's no challenge to the school policy left.

[00:16:31] Speaker 02:
There's no claim for declaratory or injunctive relief So what are you asking for the courts to grant?

[00:16:37] Speaker 00:
I know what you're asking us to grant I just want to know big picture So what's left in the complaint is claim for damages and of course that would have to be determined after a trial

[00:16:47] Speaker 02:
And have you put any evidence of damages forth yet?

[00:16:53] Speaker 00:
I think that the most relevant evidence would be the punishment of the speech on the issues that are still live on appeal.

[00:17:00] Speaker 03:
I'm just curious how you even separate damages from the initial incident, from the potential damages and trauma from having six-year-olds undergo the kind of litigation that they've been subject to.

[00:17:15] Speaker 00:
I appreciate your honor's concern, and I likewise don't have a good answer to that question.

[00:17:22] Speaker 00:
We mentioned earlier some struggles that the court might have with where to draw the lines with big picture with this case.

[00:17:30] Speaker 00:
And as I mentioned, we're not asking this court to necessarily resolve whether Beebe's First Amendment rights were violated in the big picture of this case.

[00:17:41] Speaker 00:
That, of course, needs to go back for trial for that determination.

[00:17:44] Speaker 00:
What we are simply asking is that granting summary judgment was premature because inferences were not properly construed in Beebe's favor in the district court.

[00:17:54] Speaker 00:
And based on case law from this court, from the Supreme Court, the district court could not have granted summary judgment.

[00:18:02] Speaker 00:
So I read that as appropriate.

[00:18:03] Speaker 04:
Is there a reason to publish on that?

[00:18:04] Speaker 04:
There's a lot of amicus briefs, obviously, because it's the

[00:18:09] Speaker 04:
that obviously basically the district court just couldn't conceive of the fact that someone at that age, even giving you all those inferences that there was no there there.

[00:18:19] Speaker 04:
So if this court were to say, well, okay, you give all inferences, there's there there to go to trial.

[00:18:25] Speaker 04:
Is that something that needs to be published?

[00:18:31] Speaker 00:
A published decision I think is necessary to clarify that under Supreme Court and this court's precedent, even students as young as first grade do have free speech rights.

[00:18:42] Speaker 03:
Would you feel the same way, would you answer this question the same way if we were to adopt a bright line rule that children of a certain age consistent with what the district court held here do not enjoy the same protections?

[00:18:56] Speaker 00:
Well, such a decision would certainly be presidential.

[00:18:59] Speaker 00:
I just don't think that this court

[00:19:01] Speaker 00:
could so say because of the Supreme Court's decision in Barnett.

[00:19:06] Speaker 04:
Well, you would say it would be wrong.

[00:19:07] Speaker 04:
We could say it.

[00:19:08] Speaker 00:
Correct.

[00:19:08] Speaker 04:
We could say it.

[00:19:10] Speaker 04:
But there was one other question before I have you sit down that, do we need to look at, the district court didn't look at qualified immunity, right?

[00:19:24] Speaker 04:
Correct.

[00:19:24] Speaker 04:
Because the district court just said, granted summary judgment said, you got nothing here.

[00:19:29] Speaker 04:
Do we need to look at that?

[00:19:32] Speaker 00:
You don't have to.

[00:19:33] Speaker 00:
Of course, you could remand that.

[00:19:35] Speaker 00:
But if this court does decide to get into it, I think there are three aspects of free speech rights that are clearly established in this case.

[00:19:43] Speaker 00:
I'm happy to address them if you would like.

[00:19:45] Speaker 00:
But I do think it would be appropriate because the district court didn't touch on it at all for that to be considered there in the first instance.

[00:19:54] Speaker 04:
OK.

[00:19:54] Speaker 04:
Well, we've had a number of questions of you, so I'll give you two minutes on rebuttal.

[00:19:57] Speaker 04:
Thank you, Your Honor.

[00:19:58] Speaker 04:
Thank you.

[00:20:09] Speaker 01:
Good morning.

[00:20:10] Speaker 01:
Good morning.

[00:20:21] Speaker 01:
Thank you, Your Honors.

[00:20:21] Speaker 01:
I may please court Courtney Hilton on behalf of Appellees.

[00:20:26] Speaker 01:
Your Honor, to answer one of your initial questions, we agree first grade students enjoy First Amendment rights.

[00:20:34] Speaker 01:
That's not a up for dispute.

[00:20:36] Speaker 01:
That was not what Judge Carter held in the district court.

[00:20:40] Speaker 01:
There was no indication of a bright line rule that first grade students do not enjoy First Amendment rights.

[00:20:48] Speaker 01:
But the issue is, as explained in Tinker, those rights are not absolute.

[00:20:53] Speaker 01:
It's a very fact-specific analysis.

[00:20:56] Speaker 01:
And that's what we have here.

[00:20:58] Speaker 04:
So you agree that if you're going to talk to six-year-olds about issues that can be racially charged,

[00:21:07] Speaker 04:
I mean, if you want to talk about Black Lives Matter with adults, intermediate school or whatever, there are going to be discussions.

[00:21:13] Speaker 04:
You know, people are going to talk about it because not everyone agrees to what the exact meaning is of that, whether it's historical or what, you know, this, it's going to, so if you do that in first grade,

[00:21:28] Speaker 04:
Isn't it to be, I mean, if all inferences are that her drawing was in response to what you introduced in the curriculum with six-year-olds, right?

[00:21:40] Speaker 01:
Partially, Your Honor.

[00:21:42] Speaker 04:
Well, she didn't draw that in, she drew it in Black History Month when you were telling Martin Luther King stories and Black Lives Matter stories, right?

[00:21:52] Speaker 01:
So the record below shows that or evidences that Black Lives Matter was what was taught.

[00:21:58] Speaker 01:
all lives or all lives matter was not within the curriculum not taught.

[00:22:04] Speaker 01:
Bebe even testified that that was something that wasn't taught.

[00:22:08] Speaker 01:
She equated all lives with or any life with all lives matter, but that was not something that was taught.

[00:22:14] Speaker 01:
There's also nothing in the record showing that MC was taught that.

[00:22:18] Speaker 04:
But you introduced the subject matter.

[00:22:20] Speaker 04:
Her drawing happened when you talked about it in Black Lives Matter in class, right?

[00:22:26] Speaker 01:
That is the record below, Your Honor.

[00:22:28] Speaker 04:
And you agree that the drawing is speech?

[00:22:31] Speaker 01:
Yes.

[00:22:32] Speaker 04:
Okay.

[00:22:33] Speaker 04:
Where you disagree is that Tinker gave the print, what you did was appropriate?

[00:22:39] Speaker 01:
Correct.

[00:22:40] Speaker 01:
Where we disagree is that providing that drawing to MC invaded MC's rights to be let alone.

[00:22:49] Speaker 01:
If BB had worn a shirt with that,

[00:22:53] Speaker 01:
It's a passive.

[00:22:54] Speaker 04:
But there was no disruption.

[00:22:56] Speaker 04:
Would you, is there any element of disruption in the record?

[00:23:00] Speaker 04:
Honestly?

[00:23:01] Speaker 01:
No, Your Honor.

[00:23:02] Speaker 01:
That obviously is our weakest argument.

[00:23:04] Speaker 04:
We didn't brief it significantly.

[00:23:06] Speaker 04:
You know, if, you know, I guess I would only, what people are going to say in response to what you have to say is not that, like I said, as a principal's daughter, I think the principal had to

[00:23:18] Speaker 04:
have a parent calls and is concerned about something.

[00:23:22] Speaker 04:
But the record also shows that he chose not to involve the other parent.

[00:23:27] Speaker 04:
Now, that might have been perfectly appropriate.

[00:23:31] Speaker 04:
But it is something that they could use as an inference in terms of that the principal really didn't want to discuss this fully.

[00:23:41] Speaker 04:
And then we know the inferences they're entitled to, as this child was told not to draw,

[00:23:47] Speaker 04:
was told that her drawing was racist and inappropriate.

[00:23:51] Speaker 04:
We don't know exactly who did, but we know that's what they get inferences, and that she was benched for two weeks.

[00:23:58] Speaker 04:
In what world is it appropriate, and then everyone's arguing this is such an innocent child, she doesn't know what she's doing, then why is she punished?

[00:24:09] Speaker 01:
Well, Your Honor, schools are in the business of educating students.

[00:24:14] Speaker 01:
And when a drawing is provided to another student

[00:24:17] Speaker 01:
that upsets a parent, MC's mother, who is speaking on behalf of... Not the child, not the child.

[00:24:24] Speaker 01:
Correct, but if that was the bar, any student who doesn't understand what they're receiving, the parent would have no... I don't think the court is suggesting that a parent doesn't act as the voice for that child.

[00:24:39] Speaker 03:
Let me ask you this, because you started by saying that you don't dispute that a first grader has some level

[00:24:47] Speaker 03:
First Amendment protection.

[00:24:48] Speaker 03:
Correct.

[00:24:48] Speaker 03:
And that the drawing is speech and that these are fact-specific inquiries that must occur to determine whether or not the protection is sufficient under sort of the Tinker standard.

[00:25:00] Speaker 03:
So much of what's happened since you made that statement when you first stood up is a discussion about the facts.

[00:25:07] Speaker 03:
What has been alleged versus what has been is clear from the record, the disputes that exist with respect to whether or not there was actually

[00:25:17] Speaker 03:
MC's right to be secure and left alone, whether there was disruption, whether, frankly, there was even punishment.

[00:25:23] Speaker 03:
I mean, I think that there are disputes over whether or not there was punishment.

[00:25:27] Speaker 03:
So why wouldn't this be exactly the kind of case that is not appropriate for judgment at the summary judgment stage and that should proceed to at least some level of fact finding over these genuine issues of material fact?

[00:25:42] Speaker 01:
Because the courts have already determined that significant deference is given to principals in the running of their schools.

[00:25:49] Speaker 01:
This speech invaded MC's right to be let alone, she was provided that drawing because of her race.

[00:25:57] Speaker 03:
But isn't that a fact question, whether or not it affected her right to be let alone or to be secure?

[00:26:05] Speaker 03:
I'm not understanding how we can, there is, they've alleged

[00:26:12] Speaker 03:
Otherwise, so we have a genuine issue of fact.

[00:26:15] Speaker 01:
Well, I believe there is no dispute that it was provided to MC because of her race.

[00:26:22] Speaker 04:
Well, but I think some parents would look at this as and I think admittedly we have we have the parent of and the parent of the African American child said I don't want to really make a big deal of it.

[00:26:34] Speaker 04:
I just don't

[00:26:35] Speaker 04:
But the school, on the other hand, someone thought, well, you know, I know better than anyone else, and I need to tell this child that they've made a racist and inappropriate statement in their drawing.

[00:26:49] Speaker 04:
That's not Tinker.

[00:26:51] Speaker 04:
That's someone at a school and saying, well, I have the answer for this here, and I'm going to tell you, your drawing is racist and inappropriate.

[00:27:04] Speaker 04:
Why isn't that just over the top?

[00:27:07] Speaker 01:
Well, Your Honor, to correct slightly one of the things that you just said, when MC's mother communicated with Mr. Becerra that this drawing was in existence, she said, I don't want my daughter receiving these types of things.

[00:27:21] Speaker 01:
I trust you will deal with this.

[00:27:24] Speaker 01:
Now, in deposition, she testified subsequently, I didn't want her punished.

[00:27:27] Speaker 01:
I didn't want anything happening.

[00:27:29] Speaker 01:
But I trust you're going to deal with this.

[00:27:32] Speaker 03:
What could be an example of a situation where an elementary school would violate the First Amendment by regulating a young student's speech?

[00:27:48] Speaker 01:
Well, if, as I mentioned earlier, if MC was wearing a shirt, I'm sorry, BB was wearing a shirt that specifically said Black Lives Matter, it had nothing, it wasn't targeted or directed at anyone, any one student in particular.

[00:28:02] Speaker 04:
Well, the 2024 law that I've told you exists now.

[00:28:06] Speaker 04:
You could not have benched that child for two weeks with that law because there was not an imminent threat here.

[00:28:12] Speaker 04:
You would have been clearly wrong.

[00:28:13] Speaker 04:
Would you have not?

[00:28:14] Speaker 01:
That law was not in existence.

[00:28:16] Speaker 01:
I know it was not.

[00:28:17] Speaker 04:
Okay.

[00:28:18] Speaker 04:
But if it happened now and based on that law, could you justify benching a child for two weeks?

[00:28:23] Speaker 01:
And I think the definition of benching, she wasn't.

[00:28:26] Speaker 04:
But that law talks about recess is important.

[00:28:29] Speaker 04:
Kids need recess.

[00:28:30] Speaker 04:
And it basically goes to that schools don't get to deny recess to kids.

[00:28:36] Speaker 04:
And I got a little bit out of this record that part of the things that were in the discussions is, well, we would have normally documented this if we had taken away her recess.

[00:28:48] Speaker 04:
So there was something in existence in the school policy at the time that said, if you're going to take away recesses, you need to document it.

[00:28:55] Speaker 04:
And this isn't documented, right?

[00:28:57] Speaker 01:
Correct.

[00:28:57] Speaker 04:
And there are other documentations where, you know, little BB apparently,

[00:29:04] Speaker 04:
might have missed a couple of other recesses.

[00:29:07] Speaker 04:
There's a lot of people my age that missed a lot of recesses.

[00:29:11] Speaker 04:
But apparently, at that particular time, it seems that the schools had some sort of policy that if you're going to take away a child's recess, we recognize that's an extreme type of punishment.

[00:29:22] Speaker 01:
If there was discipline imposed in the form of taking away recess, it was documented in a student's file.

[00:29:33] Speaker 01:
in the facts as to whether or not recess was actually taken away.

[00:29:37] Speaker 01:
There's no supporting facts other than BB's testimony that it occurred.

[00:29:43] Speaker 04:
So we are left with the fact that it occurred.

[00:29:47] Speaker 04:
But for here, we have to say it occurred.

[00:29:49] Speaker 04:
But let me just play the devil's advocate here.

[00:29:53] Speaker 04:
As if I were on this side here, which I'm not.

[00:29:56] Speaker 04:
I'm right here in the middle of both of you.

[00:29:58] Speaker 04:
But that being said, I would argue the reason it wasn't documented

[00:30:03] Speaker 04:
because whoever did it knew it was wrong.

[00:30:09] Speaker 04:
They didn't self-report.

[00:30:11] Speaker 04:
So if you assume that it should have been documented, if it occurred, then I would make the argument if I were representing BB, well the reason it's not documented because the person that did it took it upon themselves, they decided how they were going to handle it and they didn't want to leave any fingerprints on it because they knew that when you take recess away,

[00:30:32] Speaker 04:
And the record also indicates that Beebe's mother heard it on the street.

[00:30:39] Speaker 04:
She never was notified by the school or never brought into this.

[00:30:42] Speaker 01:
Or if it was such a significant nature of a taking recess away, she wasn't instructed to go sit in the principal's office and not go outside.

[00:30:52] Speaker 01:
That's not the record.

[00:30:53] Speaker 01:
That's not the evidence.

[00:30:54] Speaker 01:
She went to recess.

[00:30:55] Speaker 01:
She would sit and read.

[00:30:57] Speaker 01:
No one ever checked in with her.

[00:30:58] Speaker 01:
No one ever made sure what was going on, that she wasn't playing.

[00:31:03] Speaker 01:
She was just told that she was going to have to sit somewhere and read.

[00:31:06] Speaker 04:
Well, isn't this why a jury just gets to decide if what you did was OK to this child?

[00:31:10] Speaker 01:
But, Your Honor, our position is even if that occurred, it was not a punishment.

[00:31:18] Speaker 01:
It was a regulation of the speech and in response to the speech and in response to BD's.

[00:31:24] Speaker 04:
But if she had a right to say it in the first place, you can't punish her at all for it, right?

[00:31:28] Speaker 02:
She had a right to say it in the first place, and that's what we contend she did not let me ask about that council So what evidence is there about actual or potential disruption of the school's educational goals?

[00:31:39] Speaker 01:
or of MC's right to be left alone well, I think we've conceded that they're Realistically it was not a substantial disruption, but with respect to MC's right to be left alone and

[00:31:52] Speaker 01:
The evidence is her mother's communication that she did not want her daughter receiving something because of her race.

[00:31:59] Speaker 01:
The record is clear also that Bibi said she provided the drawing to MC because of her race.

[00:32:06] Speaker 01:
So this is different than a number of other cases that

[00:32:10] Speaker 01:
Involved passive speech here.

[00:32:12] Speaker 02:
We have active speech targeted at one person because of their race So we've all talked about how these are first graders and taking away a first graders recess is harsh I mean they like to play they're energetic.

[00:32:25] Speaker 02:
They need to let out their their stress So if we take the plaintiff's version is true The principal mr. Becerra seems to have reacted harshly to BB's drawing

[00:32:38] Speaker 02:
which it seems like everyone's in agreement that it was innocent.

[00:32:40] Speaker 02:
Bibi at six years old didn't know what, you know, wasn't targeting MC to tell her, hey, any lives matter, not just black lives.

[00:32:50] Speaker 02:
She's six years old.

[00:32:50] Speaker 02:
She doesn't know what's going on.

[00:32:52] Speaker 02:
So how does that not, how does Mr. Becerra's or Principal Becerra's reaction not overstep the school's obligation?

[00:32:59] Speaker 02:
I know the school has the obligation to balance the student's expression with regulating speech, making sure, you know, it's a safe learning environment.

[00:33:08] Speaker 02:
But did he not overstep?

[00:33:10] Speaker 01:
Your Honor, granted, Mr. Becerra could have handled this differently.

[00:33:15] Speaker 01:
I don't think anybody will disagree with that, that he could have handled it differently.

[00:33:18] Speaker 01:
The question is, is did he violate her free speech rights?

[00:33:23] Speaker 01:
And as my friend on the other side noted in their reply brief on page 21,

[00:33:31] Speaker 01:
Mr. Becerra was perfectly within his right to regulate the speech by telling Beebe not to draw anymore, not to give her drawing to friends.

[00:33:38] Speaker 01:
So where's the line?

[00:33:40] Speaker 01:
What steps did he take that then caused it to be a violation?

[00:33:46] Speaker 04:
Well, that she was told her drawing was racist and inappropriate and that she had to miss recess for two weeks.

[00:33:52] Speaker 04:
He didn't draw the line there.

[00:33:53] Speaker 04:
At this stage, he's stuck with that.

[00:33:57] Speaker 01:
Correct.

[00:33:58] Speaker 01:
And those types of discussions, a drawing is racist, a drawing is inappropriate, occur in schools all day long.

[00:34:09] Speaker 01:
Missing recess back then, as Your Honor has noted, was something that occurred regularly.

[00:34:15] Speaker 04:
It is a way... Well, the conclusionary, you know, as a parent, it's kind of...

[00:34:23] Speaker 04:
I would not want my first grader who had a friend that was African American and was trying to make her friend feel better be called by told that what she did was racist and inappropriate because that's how that teacher would have talked to her kid as opposed to that, you know, this is, you know, there are people that feel differently about what Black Lives Matters means or if you tell someone, you know,

[00:34:52] Speaker 04:
You're really important to me.

[00:34:53] Speaker 04:
You're my friend.

[00:34:54] Speaker 04:
I don't want you to feel bad.

[00:34:56] Speaker 04:
Then to get, it's sort of like when you, as an adult, if you call someone a racist, I mean, those are fighting words.

[00:35:04] Speaker 04:
The fact that she's only six, does that mean it's any less damaging to get that put on you?

[00:35:11] Speaker 04:
Which is essentially what the, whoever conveyed that.

[00:35:14] Speaker 01:
And it was, it's alleged that it was Becerra.

[00:35:17] Speaker 01:
And Your Honor, that was a teachable moment for Mr. Becerra to have a discussion

[00:35:21] Speaker 04:
With for him to say it was racist and inappropriate when other people might not have reached that same conclusion.

[00:35:28] Speaker 01:
Yes.

[00:35:29] Speaker 04:
So that's what you argue in front of the jury that he had that teachable moment and what the other side's going to say.

[00:35:35] Speaker 04:
No, that wasn't a teachable moment.

[00:35:37] Speaker 04:
That was someone calling my child racist and inappropriate.

[00:35:41] Speaker 04:
And you don't you don't you know you can say we're not going to draw if or something along those lines.

[00:35:48] Speaker 04:
to make that categorization and put those proxies on You know I mean I still remember in fourth grade when I got in trouble.

[00:35:55] Speaker 01:
You know it to say that kids don't That they don't have feelings so that things don't bother them well And I think to address your honors concern a question earlier about you know the effect of this and where does it go?

[00:36:09] Speaker 01:
in deposition BB and in the record BB said because

[00:36:13] Speaker 01:
She doesn't think about this anymore.

[00:36:14] Speaker 01:
She continued to draw.

[00:36:16] Speaker 01:
She's moved on.

[00:36:17] Speaker 01:
She doesn't think about the Sarah.

[00:36:18] Speaker 01:
So at least in our case, that statement, that discussion with her was not something that impacted damages.

[00:36:27] Speaker 04:
It doesn't go to say that what you did was okay, or that someone doesn't get.

[00:36:32] Speaker 04:
I if I was defending the summary judgment, I would be saying the same things that you're saying.

[00:36:37] Speaker 04:
And if

[00:36:39] Speaker 04:
If he's, I'd be saying the same things that he's saying.

[00:36:42] Speaker 04:
And I don't really know what a jury would say.

[00:36:44] Speaker 04:
I don't think, I don't think either, I don't know if either of you could get 9 or 12 people to agree with you.

[00:36:51] Speaker 04:
I don't know.

[00:36:51] Speaker 04:
I mean, people feel differently about it.

[00:36:54] Speaker 04:
But, but when you grant summary judgment as a judge is what you say is no reasonable juror would find that person in favor of that person.

[00:37:05] Speaker 01:
Understood, Your Honor.

[00:37:05] Speaker 01:
And I think what we're talking about is the sliding scale

[00:37:09] Speaker 01:
the rights of a principal to regulate the speech of a first grader versus a 12th grader, versus a higher level student.

[00:37:21] Speaker 01:
We're not dealing with first graders who are engaged in discussions in the marketplace of ideas.

[00:37:28] Speaker 01:
First graders are supposed to be learning to tie their shoes.

[00:37:31] Speaker 04:
They're supposed to be learning... So maybe then you don't give a Black Lives Matter course to a first grader.

[00:37:36] Speaker 04:
Maybe you teach tying shoes.

[00:37:38] Speaker 04:
Okay, I guess what I'm saying is you can tell if if Mr.. Bersera sitting out there or a baby's mother sitting out there It's summary judgment is that no reasonable juror would find in favor of you I don't know that either of you I can't say that but if I'm if I'm not a reasonable juror and I'm thinking that there are tribal issues that someone should be able to tell their story that Maybe she doesn't have any damages made, but maybe but someone

[00:38:08] Speaker 04:
I'm going to tell you there'd be parents that would be just as irate as Bibi's mother that are going to be sitting on your jury.

[00:38:13] Speaker 04:
I don't know how that's going to come out.

[00:38:15] Speaker 04:
But in my view, and I don't speak for anyone or whatever, but if I'm a reasonable juror, if that's what you're looking at, it's not as slam dunk as the school would like to say from my perspective.

[00:38:31] Speaker 01:
Let me ask you about qualified immunity.

[00:38:33] Speaker 01:
Yes.

[00:38:34] Speaker 01:
And again, Your Honor, yes, we believe qualified immunity

[00:38:38] Speaker 01:
should carry the day.

[00:38:39] Speaker 01:
This court can consider qualified immunity, and we believe that they should.

[00:38:45] Speaker 01:
This was not a right that was clearly established.

[00:38:48] Speaker 01:
Mr. Pastera, his statements to Beebe and his regulation of the speech in this situation was not something that was clearly established for him to know that he was violating her First Amendment rights.

[00:39:03] Speaker 04:
Well, if it happened today after the law that was passed in 2024, would it be clearly established?

[00:39:11] Speaker 01:
The punishment part of the, what is alleged to be the punishment part of it?

[00:39:14] Speaker 01:
It could be.

[00:39:16] Speaker 04:
Well, it could be.

[00:39:17] Speaker 04:
I mean, it says pretty clearly you can't put children, you can't deny recess unless there's an imminent danger and you've already conceded there wasn't any disruption even.

[00:39:26] Speaker 04:
So that would have to be, they'd be on notice of that.

[00:39:30] Speaker 04:
So then the question is,

[00:39:32] Speaker 04:
is the conduct so obvious to anyone that takes care of our children that you can't punish children for something that's such innocent conduct, then he's not entitled.

[00:39:43] Speaker 04:
You don't have to have a specific case.

[00:39:46] Speaker 01:
Now, yes.

[00:39:47] Speaker 01:
Then when this occurred, it was not clearly established.

[00:39:51] Speaker 04:
So even though we are asking us to find qualified immunity here.

[00:39:56] Speaker 04:
Yes.

[00:39:57] Speaker 04:
All right.

[00:39:57] Speaker 04:
But what if we don't think you have qualified immunity?

[00:40:00] Speaker 04:
Do you want us to say that right here?

[00:40:02] Speaker 01:
I would prefer you not say that right here.

[00:40:05] Speaker 04:
But if that is something that... Because he's saying that leave that to the district.

[00:40:08] Speaker 04:
Well, and actually qualified immunity, if I understand it correctly, that you could not be entitled to qualified immunity right now.

[00:40:16] Speaker 04:
You can still, even though it doesn't make any sense, you can still grant it after a trial too.

[00:40:22] Speaker 04:
But it doesn't make any sense because that's sort of you beat the rap, but not the ride, you know.

[00:40:26] Speaker 04:
Qualified immunity is supposed to protect you from going to trial.

[00:40:30] Speaker 01:
And I do believe, Your Honor, the court is within its right to find qualified immunity now because the court can uphold the lower court's ruling based upon any grounds that were argued in the lower court and qualified immunity was argued.

[00:40:48] Speaker 01:
Just about out of time.

[00:40:49] Speaker 02:
Do we have any other questions?

[00:40:51] Speaker 02:
I have one, actually.

[00:40:52] Speaker 02:
I just wanted to clarify something because I wasn't sure if I understood you properly.

[00:40:57] Speaker 02:
So first graders have First Amendment speech, correct?

[00:41:01] Speaker 02:
Correct.

[00:41:01] Speaker 02:
Okay.

[00:41:02] Speaker 02:
And then Principal Becerra had a right to punish, I guess, or I don't want to put words in your mouth.

[00:41:09] Speaker 01:
Regulate?

[00:41:10] Speaker 02:
Regulate.

[00:41:11] Speaker 00:
Thank you.

[00:41:12] Speaker 02:
Is there anything that Principal Becerra did in this exact same situation that in your mind would be too much?

[00:41:23] Speaker 01:
Not in this situation.

[00:41:24] Speaker 01:
he could do anything he could expel her i'm sorry i'm sorry i thought you had under given our facts now if he expelled her if he suspended her if there was something crossed the line that would have been in her permanent record that could have been acted her going forward i think we're in a different whole different ballgame so but if it were today his punishment would be it would be clearly established that she could not have been denied recess for

[00:41:54] Speaker 04:
For her speech, yes.

[00:41:56] Speaker 04:
Okay, but what you're saying at that time, what he did was okay.

[00:42:04] Speaker 04:
Everything he did was okay.

[00:42:06] Speaker 01:
At that time, based upon the information he had in front of him and the state of the law at that time, yes.

[00:42:13] Speaker 01:
What he did was correct and accurate and not a violation of her free speech.

[00:42:18] Speaker 01:
Okay, thank you.

[00:42:19] Speaker 01:
Thank you.

[00:42:33] Speaker 00:
Excuse me.

[00:42:34] Speaker 00:
I'd like to pick up on that last exchange between my friend and the court and just point this court back to this court's decision in Carp v. Becken.

[00:42:43] Speaker 00:
This court said that punishing students for speech is only permissible if the student has violated some law or school policy.

[00:42:51] Speaker 00:
No one has contended that Beebe did either of those.

[00:42:54] Speaker 00:
In contrast, Principal Becerra violated the school policy in punishing her for her speech.

[00:43:00] Speaker 00:
And that's the policy on page three of our further excerpts of record.

[00:43:04] Speaker 00:
The discussion about what MC's parents wanted, what is key in that discussion is that once the parents learned what was actually going on, why the drawing was given, they explicitly told Becerra that they did not want BB to be punished.

[00:43:23] Speaker 00:
And yet that's what he did.

[00:43:24] Speaker 00:
So while yes, it was appropriate for the principal to find out what was going on, him then taking a step that the parents didn't even want,

[00:43:33] Speaker 00:
is completely removed from that student's rights to not be infringed.

[00:43:38] Speaker 04:
Well, that's evidence, but you don't, if you're the principal, I'm going to defend the principal in the sense that, you know, I've had people come in when I was a judge and they said, don't send the person to X amount of prison.

[00:43:48] Speaker 04:
I want you, you know, I'm the victim, sentence less.

[00:43:51] Speaker 04:
Hey, I'm the one that makes the decision.

[00:43:53] Speaker 04:
So just because someone comes to the principal and says, well, I don't want you to do anything, well, the principal has to do what he or she thinks is correct.

[00:44:04] Speaker 04:
They're not an extension of anyone that comes in and complains.

[00:44:08] Speaker 04:
But on the other hand, whatever they do, they're responsible for it.

[00:44:12] Speaker 04:
It better comport with the law.

[00:44:15] Speaker 00:
I couldn't have said it better myself, Your Honor, that yes, the principal has the independent duty to determine what's appropriate.

[00:44:21] Speaker 00:
But as far as this discussion on deference, I take the other side's argument not as just deference and a wane, but that the court has to defer

[00:44:32] Speaker 00:
Period to what the principal decided and that of course is not the law we wouldn't have tinker we wouldn't have Barnett if that was the law and Unless this court wants to discuss any qualified immunity any further.

[00:44:44] Speaker 04:
I'll go ahead and sit down We don't appear to thank you both for your argument in this case this matter will stand submitted