PDE Files 9th Circuit Court of Appeals Amicus Brief in B.B. v. Capistrano Unified School District

The Supreme Court has long recognized that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker, 393 U.S. at 506. Yet when B.B., a first-grade student, wrote “any life” on her own drawing of “Black Lives Mat[t]er” to express her belief that all human life is equal in value, Capistrano Unified School District punished her and prohibited her from drawing again. The district court upheld the school’s censorship because it reflexively deferred to the school administrators’ determination that the speech was derogatory and not protected by the First Amendment.

The district court was wrong. To pass constitutional muster, the District’s regulation of B.B.’s speech must, at a minimum, overcome two obstacles: (1) it must be viewpoint neutral; and (2) it must be consistent with the demanding Tinker standard. See, e.g., Barr v. Lafon, 538 F.3d 554, 571 (6th Cir. 2008); Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265-80 (11th Cir. 2004). But contra the district court, the District falls short of both.

First, the District all but admits that it engaged in viewpoint discrimination. The District punished B.B.’s speech because of a generalized feeling that the viewpoint her speech conveyed could be “racially insensitive” or “hurt[ful].” B.B. v. Capistrano Unified Sch. Dist., 2024 WL 1121819, at *4-5 (C.D. Cal. Feb. 22). But giving offense is a viewpoint, so punishing speech because it’s insensitive or hurtful is viewpoint discrimination.

Especially here because the District promoted speech on one side of the debate (messages like “Black Lives Matter”) while punishing the other side of that same debate (messages like “All Lives Matter”). The District’s viewpoint discrimination alone requires reversal.

Second, to satisfy Tinker, the District must put forth “evidence that [the school’s censoring is] necessary to avoid material and substantial interference with schoolwork” or “invasion of the rights of others.” Tinker, 393 U.S. at 511, 513. That is a “demanding standard,” which the District did not come even close to meeting. Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 594 U.S. 180, 193 (2021). The District provided no evidence that any student was harmed in any way by B.B.’s speech or that any student would be reasonably expected to be injured by the speech, let alone injured beyond the mere discomfort from unpopular speech. But it’s well-established that Tinker requires far more than hurt feelings or discomfort, even when the speech is deeply offensive or disparaging. See, e.g., C.R. v. Eugene Sch. Dist. 4J, 835 F.3d 1142, 1152 (9th Cir. 2016); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 210-17 (3d Cir. 2001) (Alito, J.).

For either reason, this Court should reverse the district court and hold that the District violated B.B.’s First Amendment rights.