B.B., a first-grade student in the Capistrano Unified School District, filed suit after she was disciplined for creating and giving a drawing to a classmate that included the words “Black Lives Mater [sic] any life.” The incident occurred after B.B.’s teacher read the class a book about Dr. Martin Luther King, Jr. Wanting to express kindness, B.B. drew a picture of her classmates holding hands and included the phrase “Black Lives Matter” because it was at the end of the book the teacher read to the class, and B.B. included the phrase “any life” because “all lives matter.”
B.B. gave the drawing to M.C., an African American classmate, who thanked her and brought it home. M.C.’s mother later discovered the drawing and, concerned that her daughter was the only Black student to receive such a message, contacted the School principal. In her email, she expressed concern about messages directed at her child based on race and requested that the School take appropriate action.
The next day, the principal met with B.B. and told her the drawing was inappropriate and that she should not give drawings to other students. B.B. apologized to M.C. but testified that she did not understand why the drawing was considered wrong. She also alleged that she was barred from recess for approximately two weeks, although the principal denied that any formal discipline occurred. B.B.’s parents did not learn of the incident until nearly a year later, when another parent informed them.
B.B., through her mother, filed suit under 42 U.S.C. § 1983, alleging that the School violated her First Amendment rights by disciplining her for protected speech and retaliating against her. The trial court granted summary judgment in favor of the School, concluding that the drawing was not protected by the First Amendment and that School officials were entitled to deference in addressing student conduct at the elementary level.
The Ninth Circuit reversed. The Court began by reaffirming that elementary-aged students retain First Amendment rights at public schools. It clarified that the governing standard is the Supreme Court’s decision in Tinker v. Des Moines, which permits schools to regulate student speech only when it materially disrupts school operations or interferes with the rights of other students.
The Court rejected the trial court’s conclusion that B.B.’s speech was categorically unprotected. It emphasized that age is a relevant factor in applying Tinker, as younger students may be more vulnerable and schools may have greater discretion, but age alone does not eliminate constitutional protection. Schools must still demonstrate that any restriction on speech was reasonably necessary to protect student safety or well-being.
Because there was no evidence that B.B.’s drawing caused any disruption to classwork or school operations, the Court focused on whether the drawing interfered with M.C.’s right to be secure and “let alone.” The Court acknowledged that schools may regulate speech that targets students based on characteristics such as race, particularly where it is threatening, harassing, or demeaning. However, the record contained conflicting evidence about whether the drawing conveyed a harmful message, whether M.C. was actually affected by it, and whether the principal’s response was reasonably necessary. For example, there was evidence that M.C. did not initially understand the drawing and that B.B. intended it as a positive message.
The Court also noted disputes about whether B.B. was actually punished and, if so, the extent of that punishment. Given these factual disputes, the Court held that summary judgment was inappropriate and that a factfinder must determine whether the School’s actions satisfied the Tinker standard.
The Court likewise revived B.B.’s First Amendment retaliation claim, explaining that because the trial court’s ruling rested on the incorrect conclusion that the speech was unprotected, the retaliation claim required further factual development.
Accordingly, the Ninth Circuit vacated the grant of summary judgment and remanded the case for further proceedings.
B.B. v. Capistrano Unified Sch. Dist. (9th Cir. 2026) 169 F.4th 953.
Note: While this case arose in the public-school context, it provides useful guidance for private schools when evaluating student speech. Elementary-aged students at private schools generally do not have constitutional free speech protections, however high school students at public and private schools do. This case reinforces the importance of considering the context of the speech, including the age of the students involved, the intent behind the expression, and whether the speech could reasonably be viewed as disruptive or harmful to others when determining an appropriate response.