California 8th grader suspended over ‘blackface’ allegations after he wore face paint to high school football game

The eighth-grade boy had blackface paint under his eyes and on his cheeks when he attended the October 13 game between La Jolla High and Morse High. His attendance was documented with photographs, and only a week later, the principal at his Muirland Middle School called parents and students in for a meeting. The result was that the boy was suspended for two days and prohibited from attending all future sporting events. The middle school has made its Instagram private.

The Foundation for Individual Rights and Expression issued two letters, first to the principal and second to the superintendent of schools expressing their concerns about the misplaced punishment and the school's apparent denial of the family's appeal.

"FIRE was disappointed to learn that the San Diego Unified School District has denied J.A.’s appeal of his suspension," they wrote, substituting JA for the boy's name. "We note the notice of the decision is dated November 8, 2023, the same day FIRE sent the district and Muirlands Middle School the enclosed letter explaining that J.A.’s punishment violates the First Amendment. We therefore write to confirm the district’s decision is final and will not be reconsidered."

The disciplinary notice said that the boy "painted his face black at a football game" and that the incident was an "offensive comment," with "intent to harm." Apparently, Principal Jeff Luna found the whole thing more offensive because Morse High School is "largely black."

FIRE said that this was just eye paint. Their letter to the principal elucidated their perspective. They stated that they were "concerned by Muirlands Middle School’s discipline of student J.A. for wearing exaggerated eye black to a recent football game. As the First Amendment protects J.A.’s non-disruptive expression of team spirit via a style commonly used by athletes and fans—notwithstanding your inaccurate description of it as 'blackface'— FIRE calls on the school to remove the infraction from J.A.’s disciplinary record and lift the ban on his attendance at future athletic events. Our concerns arise out of J.A.’s attendance at a football game between La Jolla High School and Morse High School on October 13 with another student and that student’s mother. Many at the game wore face or body paint."

They shared images of athletes wearing the same style of face paint as the student did and was likely intending to emulate.

"J.A.’s appearance emulated the style of eye black worn by many athletes, as shown below," FIRE said. "Such use of eye black began as a way to reduce glare during games, but long ago evolved into miniature billboards for personal messages and war-paint slatherings.' J.A. wore his eye black throughout the game without incident."

FIRE noted further that there had been no complaints about the face paint or the student at the game. "You did not indicate that anyone complained about J.A.’s face paint or that it caused any sort of disruption," FIRE said. "Similarly, the suspension report says only that J.A. 'painted his face black at a football game' and lists his alleged offense as 'Offensive comment, intent to harm.' Yet J.A.’s non-disruptive, objectively inoffensive face paint was constitutionally protected expression.

"The First Amendment protects not only pure speech, but non-verbal expression such as music (with or without lyrics), dance, painting, and parades. The U.S. Court of Appeals for the Ninth Circuit—whose decisions bind Muirlands Middle School—has similarly held tattoos, which may consist of “words, realistic or abstract images, symbols, or a combination of these,' are a form of 'pure expression' entitled to First Amendment protection. The same logic applies to face and body paint," FIRE stated.

"It is well-established that public school students do not shed their constitutional rights at the schoolhouse gate," FIRE went on.

The boy's father told Cal Coast News that the family "had a fun, great night without any trouble." A security guard, who the boy's father notes was black, encouraged even more paint for the boy. The paint was on his cheeks but left his nose, forehead, and most of the area around his mouth unpainted.