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First Amendment and First Grade: 9th Circuit Rules on Student Speech

The Ninth U.S. Circuit Court of Appeals in San Francisco, California. (Justin Sullivan/Getty Images)

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Fred Lucas is chief news correspondent and manager of the Investigative Reporting Project for The Daily Signal. He is the author of “The Myth of Voter Suppression: The Left’s Assault on Clean Elections.” Send an email to Fred.

The 9th Circuit Court of Appeals ruled in favor of an elementary school student’s First Amendment rights after she was punished for adding the words “any life” to a picture of “Black Lives Matter.”

The student, with the initials B.B., said she added the message while in first grade in 2021, inspired by a lesson on Martin Luther King Jr. She shared the drawing with a friend.

The school principal told her the drawing was inappropriate and punished her, according to the Pacific Legal Foundation, which represented the family in the case. The principal forced her to apologize, banned her from giving drawings to classmates, and excluded her from recess for two weeks.

The parents, who didn’t find out about the punishment until a year later, sued the Capistrano Unified School District in San Juan Capistrano, Calif.

“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 Pacific Legal Foundation, said in a public statement Tuesday.

“The Constitution protects every student’s right to free expression. No child should be punished for expressing a well-intentioned message to a friend.”

A district court ruled in favor of the school district. But the three-judge panel of the 9th Circuit vacated the lower court’s ruling and sent it back for further proceedings. The appeals court held that schools bear the burden of proving when a restriction on students’ speech is necessary.

The two sides in the case disagreed with the extent of the Supreme Court’s 1969 ruling in Tinker v. Des Moines, which says that schools may restrict speech only in cases of significant disruption.

“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 25-page opinion says. 

The court later added, “Consistent with our sister circuits, we hold that the age of the students is a relevant factor in evaluating the school’s restriction on a student’s speech. But age is not dispositive.”

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