9th Circuit upholds first grader’s free speech rights in ‘black lives matter’ case
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A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reversed a lower court’s ruling, holding that a first-grade student’s drawing was protected by the First Amendment. The court applied the Tinker v. Des Moines framework,saying elementary students retain free-speech rights and that schools may restrict speech only when necessary to protect the safety and well-being of students. The case involved a capistrano Unified School District in Orange County, california, where a young girl was punished for drawing a picture of her friend (who is Black) and others with the words “Black lives Matter” and “any life.” The panel found the lower court misapplied the standard and sent the matter back to the district court for further proceedings. The Pacific Legal Foundation, which supported the student, hailed the decision as a victory for students’ rights in the classroom.
9th Circuit upholds first grader’s free speech rights in ‘black lives matter’ drawing case
A federal appeals court handed an elementary school student a significant win this week for her free speech rights in the classroom, vacating a lower court’s ruling that had placed her speech rights at the whim of teachers and administrators.
A three-judge panel on the U.S. Court of Appeals for the 9th Circuit found that the lower court did not properly apply the standard set in the 1969 Supreme Court ruling Tinker v. Des Moines, which found that a student does not lose his free speech rights at school and that schools may only restrict speech if it causes significant disruption to the learning environment. The ruling said the lower court was wrong in finding that the student’s drawing, at the center of the dispute, was not protected by the First Amendment.
“This case presents an important issue: to what extent is elementary students’ speech protected by the First Amendment? Applying the criteria set forth in Tinker v. Des Moines Independent Community School District, 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 ruling said.
A first-grade student, identified in court documents as B.B., was punished and banned from drawing after she drew a picture of her friend, who is black, and two others with the phrase “black live matter” — after being taught about Martin Luther King Jr. and the phrase “black lives matter” – as well as the words “any life.” Her lawyers claim she created the drawing to empathize with her black classmate and friend but was punished and forced to apologize to the friend for the drawing, an action the friend was allegedly confused by. B.B. and her mother sued Capistrano Unified School District for infringing on the student’s free speech rights.
2/ B.B. was in first grade when she drew this picture after a classroom lesson on MLK. The principal called it “racist” and “inappropriate,” banned her from giving out drawings, and made her sit out of recess for two weeks. The family challenged these unfair punishments. pic.twitter.com/H3uyNgwyr9
— Pacific Legal 🗡⚖️ (@PacificLegal) March 10, 2026
“Although schools have comprehensive authority to ‘prescribe and control conduct’ in schools when their actions infringe on a student’s First Amendment rights to expression, even for an elementary school student, the school has the burden of showing that its actions were reasonably undertaken to protect the safety and well-being of its students,” the ruling said.
The panel, made up of one appointee of former President George W. Bush and two appointees of former President Joe Biden, sent the case back to the U.S. District Court for the Central District of California for further proceedings.
The Pacific Legal Foundation, which has supported B.B.’s lawsuit against the school district in Orange County, California, celebrated Tuesday’s ruling as a victory for students’ rights in the classroom.
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“Today’s ruling affirms what should be obvious: Students don’t lose their constitutional rights just because they’re young,” Caleb Trotter, senior attorney at the Pacific Legal Foundation, said in a statement Tuesday.
“The Constitution protects every student’s right to free expression,” Trotter said. “No child should be punished for expressing a well-intentioned message to a friend.”
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