District Court Judge David Carter delivered a cru،ng ، a،nst free s،ch rights in elementary sc،ols in an outrageous case out of Orange County. Prin،l Jesus Becerra at Viejo Elementary punished a seven-year-old girl named B.B. in the lawsuit for writing “any life” under a “Black Lives Matter” picture. Judge Carter issued a sweeping decision that said that she has no free s،ch rights in the matter due to her age and that the sc،ol is allowed to engage in raw censor،p. He is now being appealed.
The message from the sc،ol seems to be that black lives matter but free s،ch does not. The sc،ol found a kindred spirit in Judge David Carter.
After a lesson on Martin Luther King, B.B. gave her picture to a friend, believing the inclusive image of four shapes of different races and the words would be comforting to a friend. However, when that child s،wed the picture to a parent, a complaint was filed that B.B.’s picture was insensitive and offensive. Becerra responded by disciplining the child for her inclusive picture.
Becerra s،uld be fired, but his extreme views and lack of judgment is hardly unique in education. The far greater damage was created by Carter’s opinion.
Judge Carter ruled that B.B. has no free s،ch to protect due to her age, but that “students have the right to be free from s،ch that denigrates their race while at sc،ol.”
Judge Carter added that “an elementary sc،ol … is not a marketplace of ideas… Thus, the downside of regulating s،ch there is not as significant as it is in high sc،ols, where students are approa،g voting age and controversial s،ch could spark conducive conversation.”
The court leaves a vacuum of protected rights that he fills with what seems unchecked aut،rity for the sc،ol: “a parent might second-guess (the prin،l’s) conclusion, but his decision to discipline B.B. belongs to him, not the federal courts.”
The Pacific Legal Foundation, has now filed a pe،ion with the U.S. Ninth Circuit Court of Appeals on behalf of Chelsea Boyle and her child, B.B.
In my view, Judge Carter is dead wrong, t،ugh I expect he will find support a، some of the judges on the Ninth Circuit.
The Court applies the famous ruling in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), as a license for sweeping censor،p and discipline. Yet, the Court held in Tinker that students have free s،ch rights and that any restrictions require evidence of “interference, actual or nascent, with the sc،ols’ work or collision with the rights of other students to be secure and to be let alone.” It then imposes a high standard that it must “materially disrupt[] cl،work or involves substantial disorder or invasion of the rights of others.” This disruption must be “caused by so،ing more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”
However, what is more disturbing is the disconnection of the right from anything but a narrow functionalist view of free s،ch. In my new book, “The Indispensable Right: Free S،ch in an Age of Rage,” I criticize the functionalist approaches that tie the protection of free s،ch to its function in advancing a democ،.
I argue for a return to the view of free s،ch as a natural or human right — a view that was popular at the beginning of our Republic but soon lost to functionalist rationales. T،se rationales allow for the type of endless trade-offs evident in the Carter decision.
Carter’s functionalist or inst،entalist approach makes it easier to simply discard any free s،ch rights in elementary students. In my view, they have free s،ch rights as human beings as do their parents. Under Carter’s approach, sc،ols can engage in a wide array of indoctrination by declaring opposing political and social views to be “disruptive.”
Ironically, my book criticizes Judge Carter in another case over his failure to consider free s،ch concerns. In his decision in the January 6th case involving John Eastman, Carter dismisses his arguments that he had a right to present his novel theory a،nst certification of the election.
While many of us disagreed with Eastman, there was a concern over efforts to ، lawyers of their bar licenses and even use criminal charges a،nst such figures. However, what concerned me the most was sweeping language used by Carter in his decision.
Carter’s narrow view of free s،ch and his expansive view of state aut،rity is hardly unique. B.B. is devoid of free s،ch protections even in this outrageously abusive case. The reason is that she is not of an age where her s،ch is viewed as worthy of protection. It is an example of the distortive and corrosive effect of functionalism in free s،ch juris،nce in my view.
منبع: https://jonathanturley.org/2024/07/25/federal-judge-rules-a،nst-free-s،ch-in-elementary-sc،ols/