In B.B. v. Capistrano Unified School District, a first-grade student drew a picture saying “Black Lives Mater [sic] any life” and gave it to a Black classmate, prompting the principal to tell her the drawing was “not appropriate” and possibly “racist.” The Ninth Circuit vacated the district court’s summary judgment and held that students have First Amendment rights and that the landmark case Tinker v. Des Moines Independent School District applies even in early elementary grades.
The court stressed that while young age gives schools “broader discretion,” it is “not a basis to deny constitutional protection,” and administrators must show that any restriction on student speech was “reasonably undertaken to protect the safety and well-being of [their] students.” Because the record contained genuine disputes of material fact, including whether the drawing interfered with another student’s rights and whether B.B. was actually punished, the court sent the case back for further proceedings.
After a classroom lesson on Dr. Martin Luther King Jr., B.B. created a drawing of “all her friends holding hands” with the disputed phrase and gave it to her classmate, who thanked her and took it home. The classmate’s mother later emailed the principal expressing concern that her daughter was the only Black child to receive such a message.
According to B.B., the principal then told her the drawing was inappropriate, instructed her not to give drawings to classmates, and she subsequently missed recess for two weeks. Applying Tinker, schools may restrict student speech only when they can show (1) the speech would materially disrupt school operations or (2) the speech would invade the rights of others, meaning it threatens, harasses, targets, or otherwise undermines another student’s ability to feel “secure and let alone.” The Ninth Circuit explained that this standard requires actual evidence, not assumptions or discomfort. Here, the classmate “did not understand the drawing,” there was no disruption, and the only concern came from the parent’s email. Because schools must justify restrictions with evidence rather than assumptions, the court held that a jury must decide whether the principal’s response was reasonably necessary.
This case reaffirms that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” as stated in Tinker. This decision is a reminder that even very young students have First Amendment rights, and schools must be prepared to justify any restriction on student expression with evidence, not assumptions or parental pressure. For districts, this means that well intentioned efforts to defuse parent concerns or avoid controversy can create liability if the school cannot connect its actions to a concrete risk of disruption or harm. The case reinforces the need for consistent, documented decision making when responding to student to student expression, especially on topics involving race, identity, or perceived targeting.
First Amendment issues continue to grow in both number and complexity, as this litigation shows. Careful coordination with legal counsel is critical, as these cases carry the potential for monetary damage and even individual liability. Contact any of our Student or Personnel Practice Group attorneys with your inquiries.
Source: B.B. v. Capistrano Unified Sch. Dist., 24 1770 (9th Cir. Mar. 10, 2026)
