From today's decision in B.B. v. Capistrano Unified School Dist., decided by Judges Consuelo M. Callahan, Roopali H. Desai, and Ana de Alba:
In March 2021, B.B., a first-grade student, drew a picture which included the words "Black Lives Mater [sic] any life" and gave it to M.C., an African American classmate. When M.C.'s mother raised concerns, the school principal, Jesus Becerra, spoke to B.B. and allegedly told her that the picture was inappropriate and racist, and that she was not allowed to give her drawings to classmates. B.B., through her mother, sued …, alleging that Becerra's actions punished B.B. and violated her First Amendment rights. The district court granted summary judgment for the defendants, stating that the drawing 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 (1969), 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. Because the Tinker analysis raises genuine issues of material fact, we vacate the grant of summary judgment and remand….
