In March 2021, first-grade student B.B. drew a picture after a classroom lesson about Dr. Martin Luther King Jr. The drawing showed children holding hands and included the phrase “Black Lives Matter [sic] any life.” She gave the drawing to an African American classmate, M.C., who thanked her. M.C. later took the drawing home, where her mother found it and expressed concern that her daughter, the only Black child in the grade, had received a message referencing her race. The mother emailed the school principal, stating she would not tolerate messages directed to her daughter because of her skin color.
The next day, the principal met with B.B., allegedly told her the drawing was not inappropriate and racist, instructed her not to give drawings to other students, and directed her to apologize. B.B. was allegedly also prevented from attending recess for approximately two weeks. M.C. did not understand the drawing, and her mother told her not to worry about it. B.B. did not inform her parents of the incident at the time. Her mother learned of it nearly a year later and filed a complaint with the school district, which ultimately concluded that the evidence did not substantiate that B.B. had been disciplined.
B.B., through her mother, filed a civil action under 42 U.S.C. section 1983 against the District, the principal, alleging violations of B.B.’s First Amendment rights, including retaliation. After dismissals of certain claims and parties, the remaining First Amendment claims against the principal proceeded to summary judgment. The defendants moved for summary judgment, arguing the drawing was not protected speech and that the school’s actions were permissible under governing law. The district court granted summary judgment in favor of the principal, concluding the drawing was not protected by the First Amendment and that the school’s response did not warrant judicial intervention. B.B. appealed, seeking reversal of the summary judgment on her First Amendment and retaliation claims.
The Ninth Circuit reviewed the grant of summary judgment de novo and applied the framework established in Tinker v. Des Moines Independent Community School District. The Ninth Circuit held that elementary school students possess First Amendment rights and that the Tinker standard applies in the elementary school context, with student age serving as a relevant but non-dispositive factor. Under Tinker, a school may regulate student speech only when it materially disrupts school activities or invades the rights of others, and the school bears the burden of showing that its actions were reasonably necessary to protect student safety and well-being.
The Ninth Circuit focused on whether the drawing invaded the rights of B.B.’s classmate M.C. It concluded that the record contained conflicting evidence on that issue. Evidence suggested the principal could have viewed the drawing as targeting M.C. based on race and potentially interfering with her right to be secure and let alone. At the same time, other evidence indicated M.C. did not understand the drawing and suffered no harm, and there was no clear connection between B.B.’s language and a derogatory message. The Ninth Circuit also identified disputes regarding whether B.B. was actually punished and the nature of any restrictions imposed. Because these factual disputes were material to whether the school’s response was reasonably necessary under Tinker, summary judgment was improper.
The Ninth Circuit further held that the district court erred by treating B.B.’s young age as dispositive. While age affords schools greater discretion, it does not eliminate First Amendment protection or the requirement that the school justify its actions. The Ninth Circuit also vacated summary judgment on the retaliation claim because it depended on the determination that the speech was unprotected.
The Ninth Circuit vacated the district court’s grant of summary judgment on the First Amendment and retaliation claims and remanded the case for further proceedings.
B.B. v. Capistrano Unified Sch. Dist. (9th Cir. 2026) 169 F.4th 953.