On March 10, the Ninth Circuit Court of Appeals rendered its opinion in B.B. v Capistrano USD (No. 24-1770) that the 1969 Supreme Court decision in Tinker v. Des Moines regarding the First Amendment speech clause applies to all students including first grade students.
In this case, the first-grade student's teacher read the class a story about Dr. Martin Luther King, Jr. After the story, B.B. “felt bad” because “black people . . . were put in a worse position” and made a drawing showing “all her friends holding hands” with the phrase “Black Lives Matter” under which she added “any life.” B.B. did not know that “Black Lives Matter” had any particular meaning but included the phrase because it was at the end of the book her teacher read to the class. She stated that she included the phrase “any life” in her drawing because “all lives matter.” B.B. then gave the drawing to her classmate, who is African American. The mother of the student who received the drawing was concerned and contacted the principal. The principal spoke with B.B. the next day and told her that the drawing was “not appropriate,” she was not to give drawings to other students, and she should apologize to the student. B.B. apologized twice to the student and testified that she was barred from recess for two weeks. BB's mother filed suit alleging the principal violated B.B.'s First Amendment rights by punishing B.B. and retaliating against her for the drawing.
The summary judgment in favor of the school principal was reversed because the District Court judge erroneously ruled the student's drawing was not protected by the First Amendment. Instead, the trial court was required to apply the balancing test between protection of expression and the school's interest in showing its actions were reasonably undertaken to protect the safety and well-being of its students.
The appellate court held that when the First Amendment is at issue, school authorities may regulate speech only when the speech (1) materially disrupts classwork or involves substantial disorder or (2) creates an invasion of the rights of others. In this case, the parties agreed the drawing did not materially disrupt classwork or involve substantial disorder. Put simply, Tinker protects student speech under the First Amendment until it collides with the school's interest in preventing disruption and protecting other students. The decision also observed that as a general rule, schools may regulate speech in three categories: (1) indecent, lewd, or vulgar speech, (2) speech, uttered during a class trip that promotes illegal drug use, and (3) speech that others may reasonably perceive as bearing the imprimatur of the school, such as that appearing in a school-sponsored newspaper.
Turning to the second prong, the court referred to the burden on the school to prove that taking action was reasonably necessary or reasonably designed to protect “the safety and well-being of its students.” The court referred to the second prong as the “rights of others” that can not only include bullying but also speech that generally denigrates other students on the basis of a core identifying characteristic, such as race, religion, and sexual orientation. The court gave several examples of where discipline was appropriate including upholding the ban on a high school student wearing a T-shirt with an anti-homosexual message because doing so collided with the rights of other students in the most fundamental way and in another case where a two-day suspension was a reasonable punishment for a twelve-year-old who had sexually harassed two younger students.
The opinion then reviewed the facts and the reasoning which were in dispute. In so doing, the court pointed out that the principal claimed he never disciplined the student, while the student claimed she was prevented from going to recess for two weeks. The court also observed that certain speech may be merely negative or controversial to high schoolers but may constitute derogatory and injurious remarks against elementary students given their greater vulnerability. This was important because if student B.B. was not actually punished for her drawing, her First Amendment claim would fail.
On the other hand, there was testimony that the receiving student was unaffected by the drawing and thus did not experience the kind of expressive attack on the basis of a core identifying characteristic required for a restriction on speech.
The opinion concluded by remanding the case back to the trial court with reference to the balancing requirement of First Amendment Rights to expression, even for an elementary school student, and restating that the school has the burden of showing that its actions were reasonably undertaken to protect the safety and well-being of students, assuming that the student was in fact disciplined.
If you have any questions about First Amendment Rights to speech and expression, please contact our office. Parker & Covert LLP has offices located in northern and southern California. We invite you to visit our website at www.ParkerCovert.com.
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