B.B. was a first grader in California. After her teacher read a story about Dr. Martin Luther King Jr., B.B. made a drawing showing friends holding hands and wrote “Black Lives Mater [sic] any life.” She gave the drawing to M.C., a Black classmate. After M.C.’s mother complained, the principal told B.B. the drawing was inappropriate, directed her not to give classmates drawings, and required an apology. B.B. later testified that she also lost recess for two weeks.

B.B. argued that the drawing was protected student expression and that punishing her violated the First Amendment. The school argued that educators need flexibility to protect very young children from messages directed at them based on race and other personal characteristics.

The Ninth Circuit rejected the idea that elementary students have no meaningful First Amendment protection. It said Tinker applies, although a student’s age and the effect of speech on other children are important factors. Because the evidence left factual questions about what happened, whether the drawing actually invaded M.C.’s rights, and whether the school’s response was reasonably necessary, the appeals court vacated summary judgment and returned the case to the district court.

The decision is important because it confirms that even very young public-school students have free-speech rights. Schools may have greater leeway with elementary students, but they still need a constitutionally valid reason to restrict student expression.