A federal appeals court ruled Tuesday that elementary school students have First Amendment protections, reviving a lawsuit brought on behalf of a Southern California first grader who was allegedly punished after giving a drawing to a classmate.
In its decision, a three-judge panel of the Ninth Circuit Court of Appeals vacated U.S. District Judge David O. Carter’s grant of summary judgment to the defendants and sent the case back for further proceedings.
Applying the U.S. Supreme Court’s landmark 1969 student-speech decision in Tinker v. Des Moines Independent Community School District, the panel wrote: “We hold that elementary students’ speech is protected by the First Amendment, the age of the students is a relevant factor under Tinker, and schools may restrict students’ speech only when the restriction is reasonably necessary to protect the safety and well-being of its students.”
The dispute stems from a March 2021 incident, when plaintiff “B.B.” was a first-grade student at Viejo Elementary School in the Capistrano Unified School District. After a classroom story about Martin Luther King Jr., “B.B.” “felt bad” because “Black people… were put in a worse position” and made a drawing showing “all her friends holding hands,” the opinion said.
The drawing included the words “Black Lives Mater [sic] any life,” the court said.
Afterward, she gave the drawing to her classmate, ‘M.C.,” who is Black, and the classmate thanked her and took it home. When M.C.’s mother discovered the drawing, she became “concerned” that child was being singled out as the only Black student in her grade to receive such a drawing.
The next day, M.C.’s mother emailed the school’s principal, Jesus Becerra, saying she appreciated “Black Lives Matter” but did not trust what “any life” meant, according to the opinion.
She wrote that she and her husband would not tolerate “any more messages given to our daughter because of her skin color,” adding, “We do not send [M.C.] to school with flyers or propaganda. We only send her to school to learn the curriculum and that is it.”
The mother also asked the school to take action.
According to the opinion, Beccerra spoke with B.B. the next day and allegedly told her that the picture was “not appropriate” and “racist” and she should not give drawings to other students. B.B. was asked to apologize to M.C. and testified she was barred from recess for two weeks. Becerra denied calling the drawing inappropriate or racist.
B.B. did not tell her parents about the incident, and more than 11 months later, her mother learned of it from another parent and filed a complaint with the school district. The district ultimately denied there was strong evidence to back B.B.’s claims, and she was disciplined over the incident and her mother then filed suit in federal court alleging First Amendment violations and retaliation.
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On Tuesday, the appeals panel said Tinker applies in the elementary school context and emphasized that schools bear the burden of justifying restrictions on student speech.
It also concluded that disputes of material fact remained, including conflicting evidence about whether Becerra could reasonably conclude the drawing interfered with M.C.’s rights and whether the actions taken were reasonably necessary.
B.B.’s attorneys at the Pacific Legal Foundation celebrated the ruling in a press release.
“Today’s ruling affirms what should be obvious: Students don’t lose their constitutional rights just because they’re young,” said Caleb Trotter, senior attorney at Pacific Legal Foundation. “The Constitution protects every student’s right to free expression. No child should be punished for expressing a well-intentioned message to a friend.”
Becerra and Capistrano Unified School District did not immediately return Fox News Digital’s request for comment.
