Ninth Circuit Says Elementary Students Have First Amendment Speech Rights in Black Lives Matter Drawing Case

A three‑judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled Tuesday that elementary school students’ speech is protected by the First Amendment, reviving a lawsuit by a Southern California first‑grader who says she was punished for giving a classmate a drawing that said “Black Lives Mater [sic] any life.” The case stems from a March 2021 incident at Viejo Elementary School in the Capistrano Unified School District, where the girl, identified as B.B., allegedly was told by principal Jesus Becerra that her picture was “not appropriate” and “racist,” forced to apologize, and kept from recess after the Black recipient’s mother complained. The panel vacated U.S. District Judge David O. Carter’s grant of summary judgment for the district and sent the case back, holding that Tinker v. Des Moines applies to elementary students and that schools may restrict student speech only when it is reasonably necessary to protect student safety and well‑being, with age a relevant factor. The ruling does not decide whether B.B.’s discipline was lawful, but it squarely rejects the idea that very young students have no free‑speech rights at school, setting up further litigation over whether labeling the MLK‑inspired drawing as “racist” and disciplining the student met the Tinker standard. The dispute is already feeding broader online fights over how schools handle race‑related and Black Lives Matter expressions in class, and the decision gives parents and districts a clearer — and more legally constrained — framework for when administrators can punish such expression.