FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACOB PINARD; MARK LIPKE; 

GRIFFIN LINN; HARRY MILLS; TYSON

JARVI; TRAVIS JEFFERS; NATHAN

WHITE; D. J. CRAWFORD;

CHRISTOPHER SOMES, No. 04-35574

Plaintiffs-Appellants, D.C. No.  v. CV-03-00172-ALC

CLATSKANIE SCHOOL DISTRICT 6J, a OPINION

public body; JEFF BAUGHMAN;

MICHAEL CORLEY; LES WALLACE;

EARL FISHER,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Oregon

Ancer L. Haggerty, District Judge, Presiding

Argued and Submitted

September 15, 2005—Portland, Oregon

Filed May 1, 2006

Before: Raymond C. Fisher, Ronald M. Gould and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Fisher

4905
COUNSEL

Michael R. Seidl (argued) and Lori K. DeDobbelaere, Seidl

Law Office, P.C., Portland, Oregon, for the plaintiffsappellants. 

Peter R. Mersereau (argued) and Thomas W. McPherson,

Mersereau & Shannon, LLP, Portland, Oregon, for the

defendants-appellees.

OPINION

FISHER, Circuit Judge: 

This student speech case arises from a school district’s suspension of student athletes from its high school varsity basketball team. The students allege that the school district and

PINARD v. CLATSKANIE SCHOOL DIST. 6J 4909
various school officials violated their First Amendment free

speech rights by suspending them in retaliation for speaking

out against their coach. The district court granted summary

judgment against the students, concluding that they were not

engaged in a constitutionally protected activity because their

speech did not involve a matter of public concern. In the alternative, the court concluded that the school district could constitutionally punish the students because their decision not to

board a team bus and play in a regularly scheduled out-oftown game substantially and materially interfered with a

school activity. 

We hold that the district court erred in adopting from the

government employment context the public concern standard

for determining whether the First Amendment protects student speech. Under the proper standard articulated in Tinker

v. Des Moines Independent Community School District, 393

U.S. 503, 514 (1969), the students’ petition and complaints

against the coach were protected speech because they could

not reasonably have led school officials to forecast substantial

disruption of or material interference with a school activity.

However, we agree with the district court that the students’

refusal to board the bus was not protected by the First

Amendment because, even if expressive conduct, it substantially disrupted and materially interfered with the operation of

the varsity boys basketball program. The district court did not,

however, consider the plaintiffs’ retaliation claims. We therefore reverse and remand for further proceedings consistent

with this opinion. 

I. Factual and Procedural Background

Plaintiffs are eight former members of the 2000-01 Clatskanie High School varsity boys basketball team in Clatskanie,

Oregon.1 The defendants include the Clatskanie School Dis1Christopher Somes was an original plaintiff in this case, but voluntarily

dismissed his claims on April 24, 2003. 

4910 PINARD v. CLATSKANIE SCHOOL DIST. 6J
trict, Jeff Baughman (the varsity boys basketball coach),

Michael Corley (the high school principle), Lester Wallace

(the high school athletic director), and Earl Fisher (the superintendent).2

 Baughman, a teacher at the high school before taking on coaching responsibilities, became the team’s head

coach for the 2000-01 school year. 

Considering the evidence in the light most favorable to the

plaintiffs, as we must at this stage of the litigation, see

Bingham v. City of Manhattan Beach, 341 F.3d 939, 945-46

(9th Cir. 2003), Baughman was verbally abusive and highly

intimidating. For example, plaintiff D.J. Crawford testified

that after a game, Baughman had him hold a basketball while

Baughman “slapped” and “beat” at it (also “hitting [Crawford’s] arms”) to make sure he was holding the ball tightly.

Although the ball-holding drill might recreate a game situation, what followed was inappropriate. Baughman made a triangular shape with his fingers and told Crawford, “You know

what this is? This is what you are. You are a fucking pussy.”

3

Describing Baughman’s intimidation tactics, plaintiff Griffin

Linn testified that Baughman once told the team, “I can fuck

with your minds in so many ways you won’t know which way

is up, and don’t think I can’t. I’ll make your lives a living hell.”

4

Linn explained that the players did not report Baughman’s

behavior because Baughman made it clear that “anything that

happened in the locker room stays in the locker room.” 

2

In July 2001, Corley replaced Fisher as superintendent during the

events in this case. 

3Plaintiff Griffin Linn testified that similar incidents “occurred in the

locker room with Baughman singling out players and physically intimidating them, and basically just bullying people into submission.” 

4Linn described Baughman’s conduct as “verbal abuse, yelling, humiliation, ranting, [and] raving.” He also testified that Baughman had thrown

pens and towels, broken a dry erase board over his knee and kicked garbage cans in the locker room. Other plaintiffs similarly testified to Baughman’s incessant yelling, profanity and abusive coaching tactics. 

PINARD v. CLATSKANIE SCHOOL DIST. 6J 4911
After one particular home game, Baughman told the players that if they wanted him to quit, they should say so, and he

would resign.5 The players apparently took Baughman at his

word. On February 12, 2001, several weeks after Baughman’s

statement, co-captains Jacob Pinard and Christopher Somes

called a team meeting at a local restaurant to discuss Baughman’s behavior. Before the meeting, one of the plaintiffs

typed up a petition requesting that Baughman resign. The

petition stated:

As of February 12, 2001, the Clatskanie Tigers Boys

Varsity Basketball Team would like to formally

request the immediate resignation of Coach Jeff

Baughman. As a team we no longer feel comfortable

playing for him as a coach. He has made derogative

[sic] remarks, made players uncomfortable playing

for him, and is not leading the team in the right

direction. We feel that as a team and as individuals

we would be better off if we were to finish the season with a replacement coach. We, the undersign

[sic], believe this is in the best interest of the team,

school, town, and for the players and fans. We would

appreciate the full cooperation of all the parties

involved. 

With the exception of a foreign exchange student, every varsity player attended the meeting, including Baughman’s son.

5Plaintiff Jacob Pinard, a senior at the time and a team captain, recalls

that “Baughman was really upset because of the way we played.” Baughman sat the team down in a half circle and said “something like, ‘if you

guys want me to fucking quit the team or you want me to resign, then just

tell me so and I will.’ ” Plaintiffs Griffin Linn, Mark Lipke, Travis Jeffers,

Tyson Jarvi and Nathan White similarly testified to Baughman’s offer to

quit as head coach. In addition, Gary Points, an assistant coach, testified

that Baughman repeated his remarks when Points asked him what he had

told the players after this particular game. According to Points, Baughman

said, “I told them if they don’t want me to be their coach, say the word

and I’ll go.” 

4912 PINARD v. CLATSKANIE SCHOOL DIST. 6J
No coaches, teachers or parents attended. After discussing the

petition, all but one of the players (Baughman’s son) signed

it. The players also added a type-written note beneath the signatures stating: “[W]e will not be approached individually on

this. This was a team decision and we will be addressed as a

team.” 

The following morning, co-captain Somes delivered the

petition to Baughman. The coach immediately took it to the

high school principal, defendant Corley, who was in a meeting with the superintendent, defendant Fisher. The three

defendants met for 10 to 15 minutes, during which time

Baughman expressed that he was “confused,” “very upset”

and “hurt.” Although none of these defendants could recall

exactly what was discussed during this meeting, Corley

remembers recommending that Baughman not resign, and

Superintendent Fisher suggested that they meet with the players to “find out the detail” of the petition. Baughman was also

concerned because the team was scheduled to play an important away game that evening. Upset by the events of the

morning, Baughman asked Corley for permission to take off

the remainder of the day, which Corley granted. Corley did

not ask Baughman whether he would coach the game that

night. 

Once home, Baughman called the junior varsity coach,

Gary Points, “to inform him of the situation.” According to

Points, Baughman stated that he “wanted to know who his

back-stabbers were” and wanted “to corner the little sons-ofbitches and not give them an out.” When Points asked what

Baughman meant, Baughman responded that Corley had

given him two options: he could either resign, or decide not

to resign and tell the players to either get on the bus and play

or if they chose not to board the bus to turn in their uniforms.

According to Points, Baughman claimed that Corley and Wallace were advising him to choose the second option. 

PINARD v. CLATSKANIE SCHOOL DIST. 6J 4913
After Baughman left the school, Corley called a meeting

with athletic director Wallace and all of the players who had

signed the petition.6 The players told Corley and Wallace

about Baughman’s derogatory remarks, stated he was unfair

and expressed their discomfort in playing for him. When the

players indicated that they would not play on the team if

Baughman was going to coach them, Corley and Wallace

explained they could not have Baughman immediately

removed without an investigation. According to the plaintiffs,

Corley and Wallace presented the players with two options:

the players could participate in a mediation process with the

two of them serving as mediators and board the team bus for

the game that evening, or they could adhere to their position

and forfeit their privilege to play in the game. The plaintiffs

contend that neither Corley nor Wallace advised them that

they would be disciplined further for choosing the second

option.7 The meeting ended without the players expressing

whether they intended to board the bus. 

Later in the day, Baughman informed Corley and Wallace

that he was not going to coach the game that evening. Wallace

then made arrangements for a substitute coach to replace

Baughman. Corley and Wallace did not inform the players of

Baughman’s decision. 

With the exception of Somes, each of the players who had

signed the petition chose not to board the bus and did not play

6Corley first called plaintiff Mark Lipke into the meeting, but he indicated he would not be approached as an individual. 

7

In the plaintiffs’ Student Grievance Forms (filed to appeal their suspension), Corley wrote that the players were told they would be “off the team”

and that they would be “through for the season” if they “did not get on the

bus.” However, Corley later testified that he did not recall ever telling the

players that they would be suspended from the team for failing to board

the bus. When plaintiffs’ counsel asked Wallace if he agreed with Corley’s

testimony, Wallace responded, “I agree that he may have said that.” Plaintiffs’ counsel then clarified that Corley testified he did not recall warning

the players, to which Wallace responded, “Well, I don’t remember either.”

4914 PINARD v. CLATSKANIE SCHOOL DIST. 6J
in the game. The junior varsity team played in place of the

missing players along with Somes, Baughman’s son and the

foreign exchange student. Baughman did not coach the team,

and most of the plaintiffs attended the game as spectators. The

plaintiffs contend they decided not to board the bus to demonstrate their resolve and sincerity concerning the petition and

complaints against Baughman. They also maintain they would

not have refused to travel with the team had they known

Baughman was not coaching. 

The next day, Corley and Wallace met with the plaintiffs,

Somes and several of the players’ parents. According to two

of the parents in attendance, Corley announced that “all of the

players who signed the petition were permanently suspended

from the team” (emphasis added).8 Corley stated in the district

court that he alone decided to suspend the players from the

team, but that he did not suspend Somes (who had signed the

petition but boarded the bus and played in the game). Rather,

the suspension applied only to those members of the team

“who had refused to board [the] team bus . . . and play basketball that evening.”

9

 Although the defendants now argue that

Corley had authority to suspend the plaintiffs under the

school’s “Code of Conduct and Appearance for Athletes,” it

8The district court struck several paragraphs from the declarations of

these two parents. The plaintiffs, however, included in the excerpts of

record the entirety of these declarations without noting that certain paragraphs had been stricken, and the plaintiffs have in their briefs cited to

pages from these declarations that contain stricken evidence. In our

review, we have ignored all such stricken evidence and rely only on any

non-stricken evidence found on pages containing inadmissible evidence.

Because the pages plaintiffs cite contain admissible evidence that supports

the proposition for which the page was cited, we decline to exercise our

discretion to impose sanctions upon plaintiffs under Circuit Rule 30-2. 

9

In a memorandum signed February 15, 2001, the day after ordering the

suspensions, Corley formally stated his decision: “Players who remained

committed to the petition and refused [to] participate in the [out-of-town]

game are considered to have forfeited their membership in the Clatskanie

varsity basketball team and will not be allowed to participate in further

competitions” (emphasis added). 

PINARD v. CLATSKANIE SCHOOL DIST. 6J 4915
is not clear from the record that the Code played any role in

Corley’s decision. Indeed, Corley conceded in a deposition

that he was unfamiliar with the Code’s contents.10

Each of the plaintiffs appealed his suspension to Superintendent Fisher, who assigned the investigation to Mary Mitchell, a part-time special education administrator. Mitchell

affirmed Corley’s decision to suspend the plaintiffs, and the

school board upheld Mitchell’s decision.11

On February 7, 2003, the plaintiffs filed their lawsuit under

42 U.S.C. § 1983, alleging that the defendants punished them

for complaining about Baughman in violation of the First

Amendment. The defendants moved to dismiss the complaint

under Fed. R. Civ. P. 12(b)(6), arguing that the plaintiffs’

speech was not constitutionally protected because it failed to

touch upon a matter of public concern. The district court

denied the motion. In doing so, the court concluded that the

public concern test, which “originat[ed] in the public employment context,” does not apply in the public school context.

The defendants then moved for summary judgment, which the

district court granted. Contrary to its order denying the defendants’ motion to dismiss the complaint, the district court concluded that the plaintiffs “were not engaged in a

constitutionally protected activity” because the plaintiffs’

speech “was not a matter of public concern nor political in

nature” but instead was akin to speech that “address[ed]

10The Code states: 

1. The athlete will travel to and from contests with coach and

team unless specific arrangements are made with the coach in

person by parent or guardian prior to departure time. 

. . .

4. An athlete may be disciplined for conduct termed detrimental

to the team and/or school.

11In her written decision, Mitchell explained that “Corley had no choice

but to make plans for ending the basketball season without the players

who said they would no longer play with Coach Baughman.” 

4916 PINARD v. CLATSKANIE SCHOOL DIST. 6J
merely a private grievance against a school employee, with no

political dimension.” In the alternative, the district court concluded that even if the plaintiffs’ speech was constitutionally

protected, their conduct “substantially and materially interfered with a school activity,” giving the school district authority to punish them. The plaintiffs timely appealed. 

II. Standard of Review

We review a district court’s decision to grant summary

judgment de novo. Gammoh v. City of La Habra, 395 F.3d

1114, 1122 (9th Cir. 2005). We must determine “whether,

viewing the evidence in the light most favorable to the nonmoving party, there are any genuine issues of material fact

and whether the district court correctly applied the relevant

substantive law.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th

Cir. 2000) (en banc). All reasonable inferences are resolved

in favor of the nonmoving party. Addisu v. Fred Meyer, Inc.,

198 F.3d 1130, 1134 (9th Cir. 2000). 

III. Discussion

The plaintiffs argue that their petition, complaints to Corley

and Wallace and decision to take the option of not playing in

the away game constitute speech protected by the First

Amendment. The defendants agree that the petition standing

alone is “pure speech.” See Bartnicki v. Vopper, 532 U.S. 514,

526-27 (2001) (suggesting that the “delivery of a tape recording,” “handbill” or “pamphlet” are forms of “pure speech”).

The defendants also agree that the plaintiffs’ refusal to board

the bus — while itself not “pure speech” — was “inseparable”

from the petition. However, the defendants argue that the

plaintiffs’ entire course of conduct — the petition, complaints

against Baughman and the boycott of the game — was not

constitutionally protected because it had no political dimension, was not a matter of public concern and materially interfered with the school’s basketball program. The defendants

further contend that the plaintiffs were suspended not for their

PINARD v. CLATSKANIE SCHOOL DIST. 6J 4917
petition or complaints against Baughman, but only for their

refusal to board the bus. 

[1] We have long held that students in public schools do

not “shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate.” See Chandler v.

McMinnville Sch. Dist., 978 F.2d 524, 527 (9th Cir. 1992)

(quoting Tinker, 393 U.S. at 506). However, our precedents

make equally clear that the First Amendment rights of public

school students “ ‘are not automatically coextensive with the

rights of adults in other settings’ and must be ‘applied in light

of the special characteristics of the school environment.’ ”

LaVine v. Blaine Sch. Dist., 257 F.3d 981, 988 (9th Cir. 2001)

(quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,

266 (1988)). Thus, in the school context, “we have granted

educators substantial deference as to what speech is appropriate.” Id. But “deference does not mean abdication; there are

situations where school officials overstep their bounds and

violate the Constitution.” Id. Our task is to determine whether

the district court erred in concluding that this case does not

present such a situation. 

A. Plaintiffs’ Speech

[2] This case involves both a petition — a form of “pure

speech” — as well as potentially expressive conduct in the

form of the plaintiffs’ refusal to board the bus. See, e.g., Tinker, 393 U.S. at 505-06 (describing the wearing of armbands

as akin to “pure speech”); see also Baldwin v. Redwood City,

540 F.2d 1360, 1366 (9th Cir. 1976) (suggesting that the “element of conduct” in pure speech is “minimal”). Although the

defendants concede that the petition “standing alone” is pure

speech, they characterize the plaintiffs’ petition, complaints

against Baughman and refusal to board the bus as both “concerted action” and one “course of conduct,” the entirety of

which is constitutionally punishable under Tinker. We disagree with that view.12 As we discuss in Section III.C, because

12The district court did not make findings of fact or conclusions of law

as to what constituted the plaintiffs’ speech. 

4918 PINARD v. CLATSKANIE SCHOOL DIST. 6J
the plaintiffs’ petition and grievances against Baughman are

a form of pure speech, the defendants may not constitutionally

punish the plaintiffs just for filing their petition or complaining about Baughman unless they show “facts which might

reasonably have led [them] to forecast substantial disruption

of or material interference with school activities” as a result

of the petition or complaints. Tinker, 393 U.S. at 514.13

As for the plaintiffs’ refusal to board the bus and play in the

game, the plaintiffs assume that this conduct falls within the

ambit of the First Amendment’s protections because it is

expressive in nature. See, e.g., Rumsfeld v. Forum for Academic & Institutional Rights, Inc., ___ U.S. ___, 126 S. Ct.

1297, 1310 (2006) (“FAIR”) (explaining that the Supreme

Court has “extended First Amendment protection only to conduct that is inherently expressive”); Roulette v. City of Seattle,

97 F.3d 300, 302-03 (9th Cir. 1996) (“The First Amendment

protects not only the expression of ideas through printed or

spoken words, but also symbolic speech — nonverbal ‘activity . . . sufficiently imbued with elements of communication.’ ” (quoting Spence v. Washington, 418 U.S. 405, 409

(1974))). As we explain below, however, we ultimately need

not decide whether the plaintiffs’ boycott of the game constitutes “inherently expressive” conduct encompassed by the

First Amendment, because even if it does the boycott was

properly punishable under Tinker. 

B. Public Concern Requirement

We turn to whether the First Amendment protects the plaintiffs from being disciplined for their petition and complaints

against Baughman. As an initial matter, the plaintiffs argue

that the district court erroneously applied the “public concern”

13As we discuss in Section III.B, we also reject the defendants’ argument that the petition and complaints against Baughman do not constitute

protected speech because they fail to touch upon a matter of public concern. 

PINARD v. CLATSKANIE SCHOOL DIST. 6J 4919
test, which applies in the public employment context, to determine whether the First Amendment protects student speech.

They assert that the proper First Amendment framework for

student speech cases is set forth in the Supreme Court’s decision in Tinker and its progeny and our decision in Chandler.

We agree. 

[3] In Chandler, we reviewed the Supreme Court’s student

speech cases and identified three categories of speech that

school officials may constitutionally regulate, each of which

is governed by different Supreme Court precedent:

(1) vulgar, lewd, obscene and plainly offensive

speech is governed by Bethel School District v. Fraser, 478 U.S. 675 (1986);

(2) school-sponsored speech is governed by Hazelwood; and

(3) speech that falls into neither of these categories

is governed by Tinker.

978 F.2d at 529; see also Frederick v. Morse, 439 F.3d 1114,

1121 (9th Cir. 2006); LaVine, 257 F.3d at 988-89. The plaintiffs’ speech falls within the third category. The question is

whether Tinker contains the public concern requirement applicable in the government employment context, as the district

court concluded. We hold that it does not. 

[4] In Tinker, the Supreme Court held that the school district violated the First Amendment rights of students when it

suspended them for wearing black armbands in protest of the

Vietnam War. 393 U.S. at 513-14. The Court explained that

school officials could not restrain the students’ speech without

showing “facts which might reasonably have led school

authorities to forecast substantial disruption of or material

interference with school activities.” Id. at 514. Because the

speech “was a silent, passive expression of opinion, unaccom4920 PINARD v. CLATSKANIE SCHOOL DIST. 6J
panied by any disorder or disturbance” that “neither interrupted school activities nor sought to intrude in the school

affairs or the lives of others,” the Court held that the First

Amendment prohibited school officials from denying their

expression. Id. at 508, 514. In Chandler, we applied Tinker to

“third category” speech and held that buttons and stickers

worn by students in support of a lawful teacher strike were

not inherently disruptive. 978 F.2d at 530. 

By importing into the educational context the public concern test established in Pickering v. Board of Education, 391

U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983),

both of which dealt with speech by government employees,

the district court misread Tinker and our own precedents.

Pickering requires a court evaluating restraints on a public

employee’s speech to balance “the interests of the

[employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in

promoting the efficiency of the public services it performs

through its employees.” 391 U.S. at 568; see also City of San

Diego v. Roe, 543 U.S. 77, 82 (2004). As the Court explained

in Connick, in order to merit Pickering balancing, a public

employee’s speech must touch on a matter of “public concern.” 461 U.S. at 143. Thus, a public employer may constitutionally suppress an employee’s speech addressing “matters

only of personal interest” — such as personnel matters pertaining to the speaker’s job performance or terms and conditions of employment — in order to promote an efficient

workplace and the effective delivery of public services. Id. at

147, 150-51. However, if the government employee’s speech

touches upon a matter of public concern, the First Amendment may protect it. Id. at 146.14

14Even though Connick’s holding was limited to the employment context, see 461 U.S. at 147, the Supreme Court emphasized that it was “in

no sense suggest[ing] that speech on private matters falls into one of the

narrow and well-defined classes of expression which carries so little social

value, such as obscenity, that the State can prohibit and punish such

expression by all persons in its jurisdiction.” Id.; cf. United Mine Workers

v. Ill. State Bar Ass’n, 389 U.S. 217, 223 (1967) (“[T]he First Amendment

does not protect speech and assembly only to the extent it can be characterized as political.”). 

PINARD v. CLATSKANIE SCHOOL DIST. 6J 4921
[5] Although Connick’s personal matter/public concern distinction is the appropriate mechanism for determining the

parameters of a public employer’s need to regulate the workplace, neither we, the Supreme Court nor any other federal

court of appeals has held such a distinction applicable in student speech cases, and we decline to do so here.15 In striking

the balance “between the First Amendment rights of students

and preservation of the educational process,” LaVine, 257

F.3d at 988, neither Tinker nor its progeny limited students’

rights solely to the exercise of political speech or speech that

touches on a matter of public concern. See, e.g., Hazelwood,

484 U.S. at 266 (“[Public school students] cannot be punished

merely for expressing their personal views on the school

premises . . . unless school authorities have reason to believe

that such expression will ‘substantially interfere with the work

of the school or impinge upon the rights of other students.’ ”

(quoting Tinker, 393 U.S. at 509) (emphasis added)). Rather,

as our cases demonstrate, Tinker’s test for determining

whether the First Amendment protects “third category” student speech examines only the effect of the speech on school

15We recognize that Connick’s public concern test has been applied in

cases where the relationship between the plaintiff and the government was

sufficiently similar to an employment relationship. See, e.g., Rivero v. City

& County of San Francisco, 316 F.3d 857, 864 (9th Cir. 2002) (applying

the public concern test in a case involving government retaliation against

an independent contractor). However, we find any such similarity lacking

in cases involving students and public school officials. In addition,

although we recently recognized the “political viewpoint” of the speech

protected in Tinker and suggested that a student banner with the phrase

“Bong Hits 4 Jesus” may have similarly constituted “political speech,” we

did so in the context of distinguishing Fraser, which governs “plainly

offensive” student speech. See Frederick v. Morse, 439 F.3d at 1118-19.

We did not, however, hold that Tinker protected only political speech or

speech that touches upon a matter of public concern. Rather, we affirmed

that it is “well-established” that “student speech that is neither plainly

offensive nor school-sponsored can be prohibited only where the school

district demonstrated a risk of substantial disruption.” Id. at 1121; see

also id. at 1123 (“Tinker requires that, to censor or punish student speech,

the school must show a reasonable concern about the likelihood of substantial disruption to its educational mission.”). 

4922 PINARD v. CLATSKANIE SCHOOL DIST. 6J
activities and the rights of others. See, e.g., LaVine, 257 F.3d

at 989-92; Chandler, 978 F.2d at 529-30; Karp v. Becken, 477

F.2d 171, 176 (9th Cir. 1973).16

[6] In short, we do not read Tinker, its progeny or our own

cases applying its standard as importing Connick’s public

concern test into the public education context, and we see no

occasion to do so here.17 We therefore reaffirm Chandler’s

holding that the First Amendment protects all student speech

that is neither school-sponsored, a true threat nor vulgar,

lewd, obscene or plainly offensive unless school officials

show “facts which might reasonably have led [them] to forecast substantial disruption of or material interference with

16As Tinker itself explained, a student “may express his opinions . . . if

he does so without materially and substantially interfering with the

requirements of appropriate discipline in the operation of the school and

without colliding with the rights of others.” 393 U.S. at 513 (internal quotations omitted). Whether the speech is public or private in nature has not

been considered relevant to Tinker’s analysis. See, e.g., LaVine, 257 F.3d

at 989-92 (concluding that the student’s speech, a poem, fell within Chandler’s third category of speech and applying Tinker without determining

whether the speech was political or touched upon a matter of public concern). Significantly, Tinker does not require school officials to wait until

disruption or interference actually occurs before suppressing student

speech, nor does it require certainty that disruption will occur. Id. at 989.

17Indeed, the defendants point to no case since Tinker that has allowed

school officials to suppress or punish student speech simply because the

students’ speech was construed as addressing a personal or private matter

— without a showing of facts that would lead school officials reasonably

to forecast an interference with or disruption of school activities. But even

assuming Tinker were to include a public concern requirement, the district

court erred in concluding that the plaintiffs’ speech was “merely a private

grievance.” The plaintiffs’ criticisms of Baughman were related to various

issues of “concern to the community,” including the school’s performance

of its duties to supervise its teachers, monitor extracurricular activities and

provide a safe and appropriate learning environment for its students. See

Brewster v. Bd. of Educ. of the Lynwood Unified Sch. Dist., 149 F.3d 971,

978 (9th Cir.1998) (quoting Connick, 461 U.S. at 146). These are matters

of public concern. 

PINARD v. CLATSKANIE SCHOOL DIST. 6J 4923
school activities.” Chandler, 978 F.2d at 529 (quoting Tinker,

393 U.S. at 514).18

We recognize that the state charges school officials with

the daily administration of public education, that this “responsibility carries with it the inherent authority to prescribe and

control conduct in the schools,” LaVine, 257 F.3d at 988

(quoting Karp, 477 F.2d at 174), and that “the determination

of what manner of speech in [schools] is inappropriate properly rests with the school board, rather than with the federal

courts.” Hazelwood, 484 U.S. at 267 (internal citation omitted). However, our deference to school officials in regulating

student speech does not diminish our duty to ensure that they

do not infringe students’ First Amendment rights under Tinker. Justice Jackson’s observation 60 years ago is no less

applicable today than it was then: 

[School officials] have, of course, important, delicate, and highly discretionary functions, but none

that they may not perform within the limits of the

Bill of Rights. That they are educating the young for

citizenship is reason for scrupulous protection of

Constitutional freedoms of the individual, if we are

not to strangle the free mind at its source and teach

18The defendants overstate the concern that our reversal of the district

court’s contrary conclusion will invite federal lawsuits concerning the

everyday disciplinary decisions of public schools. Far from setting a “dangerous precedent,” our holding merely follows Tinker, which for more

than three decades has adequately balanced the important interests at stake

in student speech cases. When a student’s expressive activity leads a

school official reasonably to believe that the activity will impinge upon

the rights of other students, or substantially disrupt or materially interfere

with the work of the school — or if the activity in fact causes such harms

— school officials may take preventative or disciplinary action. See, e.g.,

LaVine, 257 F.3d at 989-90, 992 (holding constitutional a school district’s

emergency expulsion of a student because school officials “had facts

which might reasonably have led them to forecast a substantial disruption

of or material interference with school activities”). 

4924 PINARD v. CLATSKANIE SCHOOL DIST. 6J
youth to discount important principles of our government as mere platitudes. 

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637

(1943); see also Bd. of Educ., Island Trees Union Free Sch.

Dist. No. 26 v. Pico, 457 U.S. 853, 876 (Blackmun, J., concurring) (“[I]t is beyond dispute that schools and school

boards must operate within the confines of the First Amendment.”). 

C. Applying Tinker 

[7] Because the plaintiffs’ speech falls within Chandler’s

third category of “all other speech,” the defendants must justify their decision to suspend the players permanently by

showing “facts which might reasonably have led [them] to

forecast substantial disruption of or material interference with

school activities.” Tinker, 393 U.S. at 514. The Tinker rule is

a “flexible one,” Karp, 477 F.2d at 174, and in applying it,

“we look to the totality of the relevant facts,” including not

only the plaintiffs’ actions, but “all of the circumstances confronting the school officials” at the time. LaVine, 257 F.3d at

989. “[U]ndifferentiated fear or apprehension of disturbance

is not enough to overcome the right to freedom of expression,” and the “mere desire to avoid the discomfort and

unpleasantness that always accompany an unpopular viewpoint” cannot justify a school official’s decision to punish or

prohibit student speech. Tinker, 393 U.S. at 508-09. 

[8] Applying these guiding principles here, we conclude

that the First Amendment protects the players’ petition and

their complaints to Corley and Wallace during the ensuing

meeting. The defendants do not dispute that the petition and

meeting neither disrupted school activities nor impinged on

the rights of other students, and the record contains no evidence that Corley suspended the plaintiffs out of any such

concern. The players handed their petition to Baughman

directly at the start of a school day, and after Baughman left

PINARD v. CLATSKANIE SCHOOL DIST. 6J 4925
the school, they explained their complaint only to Corley and

Wallace in a private meeting. These facts closely resemble

those reviewed by the Tenth Circuit in Seamons v. Snow, 84

F.3d 1226 (10th Cir. 1996). Seamons held that the First

Amendment protected a student athlete’s report to school

authorities of a physical assault, because the student’s speech

“was responsibly tailored to the audience of school administrators, coaches, family and participants who needed to know

about the incident.” Id. at 1237-38. 

[9] It is also relevant that neither Corley nor Wallace

informed the players of Baughman’s decision not to coach the

team that evening, even though the players had clearly stated

that Baughman was the reason they did not want to play.

Thus, to the extent that the petition and meeting might have

given the school officials a “reason to anticipate” disruption

of the game, the totality of the relevant facts reveals that any

such expectation would have been unreasonable given Corley’s and Wallace’s knowledge of Baughman’s decision. Had

Corley and Wallace told the players that Baughman was not

coaching that night — and the record reveals no reason why

they could not have — it appears that the players would have

boarded the bus. 

[10] Finally, assuming without deciding that the plaintiffs’

refusal to board the bus constituted expressive conduct

encompassed by the First Amendment, we agree with the district court that the plaintiffs’ boycott of the game substantially

disrupted and materially interfered with a school activity.

Contrary to the plaintiffs’ argument, it makes no difference

under Tinker that the school was able to replace the missing

players with junior varsity players and play the game. School

districts spend much time and money scheduling and hosting

their extracurricular events, all of which involve the coordination of multiple school officials, students, parents and often

times volunteers, referees or judges. When students decide not

to participate in an extracurricular school activity on the day

it is scheduled to take place — particularly one involving a

4926 PINARD v. CLATSKANIE SCHOOL DIST. 6J
competition against another school — their conduct will inevitably disrupt or interfere with the activity, because school

officials must either execute a contingency plan to see that the

activity occurs or cancel it. This disruption or interference

occurs even when school officials avoid canceling the activity

by resorting to a backup plan, which itself constitutes a disruption. Thus, even if we viewed the plaintiffs’ boycott as

symbolic speech under the First Amendment, Tinker permits

the officials to punish the plaintiffs’ conduct because they

forced the school officials to choose between replacing the

plaintiffs with less experienced players or cancelling the game

— both disruptive options.

D. Retaliation Against the Plaintiffs’ Exercise of

Protected Speech

[11] The remaining question is whether the plaintiffs’ permanent suspension from the basketball team was simply for

refusing to board the bus, or instead was wholly or partly in

retaliation for petitioning against Baughman in the first place.

The district court did not reach this question because it concluded that the plaintiffs’ speech was not protected at all. The

record is not sufficiently clear for us to resolve the retaliation

issue on this appeal, so we shall remand to the district court

for further proceedings. 

To establish a First Amendment retaliation claim in the student speech context, a plaintiff must show that (1) he was

engaged in a constitutionally protected activity, (2) the defendant’s actions would chill a person of ordinary firmness from

continuing to engage in the protected activity and (3) the protected activity was a substantial or motivating factor in the

defendant’s conduct. See Mendocino Envtl. Ctr. v. Mendocino

County, 192 F.3d 1283, 1300-01 (9th Cir. 1999); see also

Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741,

750 (9th Cir. 2001). If the plaintiff establishes the elements of

a retaliation claim, “the government can escape liability by

showing that it would have taken the same action even in the

PINARD v. CLATSKANIE SCHOOL DIST. 6J 4927
absence of the protected conduct.” Keyser, 265 F.3d at 750

(quoting Bd. of County Comm’rs v. Umbehr, 518 U.S. 668,

675 (1996). However, as we made clear in Settlegoode v.

Portland Pub. Schs., 371 F.3d 503 (9th Cir. 2004), the defendants must show more than that they “could have” punished

the plaintiffs in the absence of the protected speech; instead,

“the burden is on the defendants to show” through evidence

that they “would have” punished the plaintiffs under those circumstances. Id. at 512 (emphasis added).19

To the extent the plaintiffs are attempting to show that their

suspension was motivated by their petition, they have satisfied the first two parts of the Mendocino Envtl. Ctr./Keyser

standard. The petition and complaints against Baughman were

constitutionally protected, and the defendants’ suspension of

the plaintiffs would lead ordinary student athletes in the plaintiffs’ position to refrain from complaining about an abusive

coach in order to remain on the team. Thus, if the plaintiffs

can show that their protected speech was a “substantial or

motivating factor” in the defendants’ decision to suspend

them from the team permanently, and the defendants fail to

show that they “would have taken the same action even in the

absence” of that speech, then the defendants violated the

plaintiffs’ First Amendment rights. See Mendocino Envtl.

19This framework for First Amendment retaliation claims arises from

the public employment context. Although we have rejected importing into

the student speech context the public concern test from the public employment context, we did so because of Tinker’s well-established standard for

non-offensive, non-school sponsored student speech, which does not

include a public concern element. However, as the defendants note, it

appears that none of our cases has adopted a standard for evaluating retaliation claims in the context of student speech. Cf. Worrell v. Henry, 219

F.3d 1197, 1212 (10th Cir. 2000) (adopting a standard for “assessing First

Amendment retaliation claims against defendants other than the plaintiff’s

employer”). Given the absence of an established retaliation standard for

student speech cases and the adequate protection for school officials and

students provided by the Mendocino Envtl. Ctr./Keyser standard for First

Amendment retaliation claims, we see no reason to adopt a different standard for the student speech context. 

4928 PINARD v. CLATSKANIE SCHOOL DIST. 6J
Ctr., 192 F.3d at 1300-01; Keyser, 265 F.3d at 750. It is this

determination that we leave to the district court to consider in

the first instance. Given our clarification of the standards for

evaluating plaintiffs’ student speech claims here, the district

court may wish to permit the parties to present further evidence in support of their positions. 

In sum, the district court on remand must determine

whether the plaintiffs have offered evidence from which a

reasonable jury could conclude that the petition and complaints against Baughman were a substantial or motivating

factor in Corley’s decision to suspend them permanently from

the team.20 In other words, the court must decide whether,

viewing the evidence in the light most favorable to the plaintiffs, the record would permit a jury to infer that Corley punished the plaintiffs not simply for boycotting the game but

also (or only) in retaliation for their having complained about

Baughman and requested his resignation in the first place. If

so, the defendants are not entitled to summary judgment

unless they can show that they would have imposed a permanent suspension even in the absence of the plaintiffs’ petition

and complaints against Baughman. See Mendocino Envtl.

Ctr., 192 F.3d at 1300-01; Keyser, 265 F.3d at 750.21

20In the First Amendment context, a plaintiff creates a genuine issue of

material fact on the question of retaliatory motive when he or she produces, in addition to evidence that the defendant knew of the protected

speech, at least (1) evidence of proximity in time between the protected

speech and the allegedly retaliatory decision, (2) evidence that the defendant expressed opposition to the speech or (3) evidence that the defendant’s proffered reason for the adverse action was false or pretextual. Such

evidence may be direct or circumstantial. See Keyser, 265 F.3d at 751-52.

21For example, the defendants might be able to show that school officials in the past had permanently suspended Clatskanie High School student athletes from a team for refusing to play in a scheduled game. See

Settlegoode, 371 F.3d at 512 (concluding that defendant school district

failed to make the requisite showing under Keyser in part because it “offered no evidence that other teachers had been fired for [engaging in similar conduct as the plaintiff] in the past”). 

PINARD v. CLATSKANIE SCHOOL DIST. 6J 4929
IV. Conclusion

[12] We reverse in part and affirm in part the district

court’s grant of summary judgment in favor of the defendants.

Contrary to the district court, we hold that Tinker’s standard

for determining whether the First Amendment protects student speech does not include the public concern requirement

applicable in the government employment context. Applying

Tinker, we further hold that the plaintiffs’ petition and complaints against their coach were protected speech because that

speech could not reasonably have led school officials to forecast substantial disruption of or material interference with a

school activity. However, the plaintiffs’ refusal to board the

bus — even if we assume it was expressive conduct — was

properly punishable by the defendants as unprotected speech

because, as the district court found, the game boycott substantially disrupted and materially interfered with the operation of

the varsity boys basketball program. Finally, on the question

of retaliation, we hold that the defendants’ permanent suspension of the plaintiffs would lead ordinary student athletes in

the plaintiffs’ position to refrain from complaining about an

abusive coach in order to remain on the team. However, we

reverse and remand to the district court to consider in the first

instance whether the plaintiffs’ protected speech (their petition and complaints against the coach) was a substantial or

motivating factor in the defendants’ disciplinary action. The

parties shall bear their own costs. 

REVERSED IN PART, AFFIRMED IN PART and

REMANDED. 

4930 PINARD v. CLATSKANIE SCHOOL DIST. 6J