Student free speech rights

Student speech is protected by the First Amendment regardless of age but “totality of relevant facts” must be considered

Legal actions regarding student free speech often concern older students’ speech as shown in well-known U.S. Supreme Court cases like Tinker v. Des Moines Independent Community School District, Bethel School District v. Fraser and Morse v. Frederick, which all involved junior high school and high school students. While elementary age students may express ideas that raise First Amendment free speech questions less frequently than their older peers, the question of their rights to speak at school nonetheless hold legal weight worth considering.

This exact question was recently raised before the Ninth Circuit Court of Appeals in California in the case B.B. v. Capistrano Unified School District, which asked the court to consider “to what extent is elementary students’ speech protected by the First Amendment?” This question arose after a first-grade student, B.B., drew a picture with the words “Black Lives Matter” and “Any Life” and gave it to M.C., an African American classmate. M.C.’s parents were concerned that their child was the only Black child in her grade to receive such a drawing and contacted the school principal. The principal spoke with B.B. and asked her to apologize to M.C., which B.B. did, despite not understanding why. There was some evidence that B.B. was restricted from recess because of the incident. B.B.’s parents learned of the drawing and school’s response 11 months later and filed a complaint leading to the lawsuit.

The court completed a detailed analysis of how student free speech precedent applies to younger students and concluded elementary age student speech is protected by the First Amendment and that student age is relevant, but not entirely determinative. The court held that “schools may restrict students’ speech only when the restriction is reasonably necessary to protect the safety and well-being of its students.” Ultimately, the court held that even a student in first grade has First Amendment free speech protections.

In its decision, in which it overturned the lower court, the Ninth Circuit first described the standard for free speech claims by students under Tinker, which aims to balance student speech rights with the needed authority of schools to control student conduct. This authority must be exercised in a manner consistent with constitutional limits. In Tinker and in the current case, the court described that the “problem lies in the area where students in the exercise of First Amendment rights collide with the rule of school authorities.” When these collisions arise, the ability of schools to regulate speech must be balanced against numerous factors. More specifically, schools may only regulate speech if needed to prevent disruption or protect other students, and reliance on either of these bases for limiting speech depends on balancing various factors. Those factors include the age of the targeted student, as the court described in this case, but age does not automatically end the inquiry.

With this legal framework in mind, the court began its analysis by declaring it disagreed with the lower court that the “Drawing is not protected by the First Amendment” and more analysis of the restriction on B.B.’s speech was needed. The court stated that, “Although we have not had occasion to apply the Tinker balancing test to elementary students, our prior opinions have recognized both that students have First Amendment rights and that the students’ ages are relevant to evaluating whether a school’s actions were reasonably designed to protect the safety and well-being of its students.” The court then clarified that age alone cannot be used to determine how student speech should be treated on a school campus. Instead, the “totality of relevant facts” must be considered.

Next, because there was no argument made that B.B.’s drawing caused disruption in the school, the court expanded on the second prong of the Tinker balancing test and provided guidance on how to consider if speech interferes with another student’s right to be secure and “let alone.” Speech that is merely offensive cannot serve as the basis for regulation under Tinker. However, speech that targets and threatens, harasses or bullies a student does interfere with the student’s right to be secure and let alone, and merits protection efforts by the school. Further, speech that does not target a specific student, but generally disparages other students based on core identifying characteristics such as race, religion and sexual orientation also satisfies the Tinker standard and merits regulation to protect students. Age considerations come into to play when making these determinations the court said, because “of course, the students’ ages affect what is derogatory or injurious.” Thus, elementary school students do enjoy First Amendment free speech protections, but the level of such protection may be affected by the age of the student being spoken to or the group of students being generally criticized or mocked.

Overall, while schools are given deference by the courts when considering if regulation of speech was needed, they are still required to show that the actions “were reasonably designed to protect the safety and well-being of its students.” Here, there was conflicting evidence that the drawing interfered with M.C.’s right to be secure and let alone, and if the actions taken against B.B. were reasonably necessary. The district heavily relied on the age of the student as a basis for the actions taken, but the court explained that “the students’ very young ages gave the school broad discretion, but it does not relieve the school […] from meeting their burden of showing that their actions were reasonably undertaken to protect the safety and well-being of the school’s students.”

Based on this analysis, the court vacated the lower court’s summary judgment decision and as a result the case will return to the lower court and continue for further consideration of the disputed facts.