California middle school boy suspended for wearing ‘black face’ to football game denied First Amendment claim

Court documents show that a friend of the student painted the face of the boy, who was new to the Muirlands school. Other students also wore face paint. The paint was under his eyes and ran down his cheeks but did not cover his entire face. His nose, forehead, around his eyes, part of his chin and above his lip were not painted at all.

For this, he was suspended for two days by Muirlands Middle School after administrators there accused his reported team spirit of actually being a horrible racist display. The school went further and claimed that the middle school boy had used racial slurs as well. The ruling identified those slurs as "watermelon" and "fried chicken" as they were discussed between the boy and a black classmate. In a statement, the boy said that he did say "watermelon" and "fried chicken" as a joke. The words were recorded in the student's permanent record as: "Hate incident—offensive comment."

A cheer coach for the opposing team reported the incident further, according to court documents. "According to the cheer coach," the documents read, "a group of particularly young boys on MHS’s side of the field—at least one of whom had a lot of black paint on his face—uttered racial slurs like 'nigga' this and 'nigga' that while another said 'you can say' it... The group of boys made these comments where MHS cheerleaders, students, and fans could see and hear them."

Administrators for both Muirlands and the opposing team, documents said, "considered the cheer coach’s report credible and serious.” The student was made to complete online modules in anti-racism to atone for his joke, as per "District restorative discipline policies," Lopez noted in the ruling. It was not determined that the boy who was struck with the suspension was guilty of saying the n-word. His parents sued the school over the suspension, saying that it should be struck from his record.

Federal District Judge Linda Lopez disagreed, saying that the expression of "black face" is not protected under the First Amendment. "First Amendment protection is only granted to the act of wearing particular clothing or insignias where circumstances establish that an unmistakable communication is being made," Lopez said.

"Based on the current record, it is not likely that [the] plaintiff can prevail on the merits of his First Amendment claim, nor are there serious questions about it. It ‘is possible to find some kernel of expression in almost every activity a person undertakes,’ such as ‘walking,’ ’meeting one’s friends,‘ or ’coming together to engage in recreational dancing‘ and other sports, ‘but such a kernel is not sufficient to bring the activity within the protection of the First Amendment,'" she continued.

In conclusion, Lopez ruled, "Plaintiff’s argument that his two-day suspension from MMS constitutes an 'ongoing First Amendment injury' is without merit... Plaintiff no longer attends MMS. Additionally, Plaintiff fails to show how a two-day suspension from a school he no longer attends limits his First Amendment rights currently or at any time in the future.”

“Without more, Plaintiff has not shown that irreparable harm is likely to occur absent a preliminary injunction. Because of this, his request must also be denied."Ruling in Black Paint Football Game Case by The Post Millennial on Scribd