Hello, this is Summary Judgment, a podcast offering easy-to-understand explanations of major court cases as they are decided.  I’m Alan Mygatt-Tauber.

This week we’re discussing V.A. v. San Pasqual Unified School District, a case from the Southern District of California about the right of student athletes to kneel during the national anthem.

V.A. is a high school senior at San Pasqual Valley High School, who played or plays on the School’s varsity football and basketball teams.  The school is a public school in Winterhaven, CA, a small town about 170 miles east of San Diego.  During the 2017 football season, V.A. began to kneel silently during the National Anthem.  He stated that his decision to kneel was aimed at expressing his personal feelings and concern about racial injustice in our country.  He also stated he intends to kneel for the anthem during the basketball season and at any other events where he is a team member.

Plaintiff began kneeling at a home football game on September 29, 2017.  He did so peacefully and without incident.  The next week, at an away game in Arizona, plaintiff kneeled again, and again did it peacefully.  After the end of the game, a few students from the opposing high school approached some of the San Pasqual Valley students, made racial slurs, threatened to force the plaintiff to stand, and sprayed a bottle of water at the students, getting one cheerleader wet.

In reaction to this incident, the principal spoke with Plaintiff’s mother, and expressed his thoughts that Plaintiff’s actions could be seen as “disrespectful” to the other school.

Following the October 6, 2017 football game, the District’s superintendent stated that she received feedback from community members, parents, and staff regarding how the District would address the behavior of the students at the Arizona high school.  She also received concerns regarding how the District would ensure safety to staff and students at the next game.

On October 11, 2017, she issued a memorandum to the District’s coaching staff, stating that students and coaches stall stand during the playing of the National Anthem.  The memorandum declared that kneeling, sitting or similar forms of political protest are not permitted during athletic events and that violations may result in removal from the team and subsequent teams during the school year.  The memorandum stated it would remain in effect until further notice, pending adoption of a policy by the School Board.

The memorandum also required all coaches to hold a student-athlete meeting before the next game, where the students were required to sign an attendance sheet stating they attended the meeting.  .

The following day, the memorandum containing these rules was sent in a letter to all of the District’s students’ parents, guardians, and caregivers, and was distributed at school to all students.

The Superintendent stated that she abandoned the initial rules in lieu of dispensing with playing the National Anthem at all home games, but she also stated she believed them to be in effect on November 28, 2017.

No letter or memorandum retracting the rules was sent to coaching staff, students, parents, guardians, or caregivers.

On November 28, 2017, believing the rules still to be in effect, Plaintiff attended an away basketball game.  He left the court when the Anthem was played and waited outside.

At a School Board meeting the same day, the Board voted to table a policy relating to the memorandum, but no policy was adopted, nor was the memorandum discussed or revoked.  Thus, they appeared to still be in effect at the time of V.A.’s lawsuit.

The Board did have their general counsel draft a policy to exclude any type of political activism or protesting.  The draft policy prohibited kneeling, sitting, or other forms of political activities, including peaceful political protest.  It has never been adopted by the School Board.

In order to avoid a problem, the Superintendent recommended not playing the Anthem at the final home football game on October 12, 2017 and the District stated that it does not play the anthem at home basketball games.  But District counsel conceded that the District has no control over whether the anthem is played at away basketball games.

In response to the District’s policy regarding peaceful protest during the anthem, V.A. brought suit seeking a preliminary injunction against the enforcement of the policy.  After granting a temporary restraining order, the District Court held a hearing to determine whether to issue the injunction.

In order to receive an injunction, a plaintiff must establish: 1) that he is likely to succeed on the merits; 2) that he is likely to suffer irreparable injury in the absence of relief; 3) that the balance of equities tips in his favor; and 4) that an injunction is in the public interest.  Furthermore, in the Ninth Circuit, of which the Southern District of California is a part, case law clearly favors granting preliminary injunctions to plaintiffs who are likely to succeed on the merits of a First Amendment claim.

The District Court found that V.A. was likely to succeed on the merits, because, under Tinker v. Des Moines, a Supreme Court case dealing with student political protest, a school cannot limit a student’s right to free speech if it is unlikely to substantially disrupt the school’s activities or learning or interfere with other students’ rights.

Though the court recognized that schools may regulate students’ speech in some limited circumstances, public school students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.  Furthermore, students may not be punished merely for expressing their personal views on school premises.  Indeed, the court noted that courts have a long and unequivocal history of siding with students over schools when faced with similar restrictions, finding that schools cannot force students into patriotic expression under the threat of retaliation.

Having identified the basic constitutional rules, the court then discussed whether kneeling constituted speech and held that it does.  Particularly where actions involve other patriotic acts, actions can be considered symbolic speech.

The Court then looked to two other possible school-related legal standards for governing speech.  Until prior Supreme Court precedent, schools can permissibly regulate three categories of speech with varying standards: First, vulgar, lewd, obscene and plainly offensive speech is governed by a case called Bethel School District v. Fraser; second, school-sponsored speech is governed by a case called Hazelwood School District v. Kuhlmeier; and third, speech that falls into neither category is governed by Tinker.

Here, plaintiff’s speech was clearly not vulgar, lewd, obscene, or plainly offensive, nor is silent kneeling during the anthem school-sponsored speech.   Thus, the case is governed by Tinker.  The court had no problem finding that there was little chance that anyone would mistake V.A.’s silent protest as school-sponsored, particularly where he is doing so while at a home game, where the school makes the choice to play the anthem with the expectation students will stand.

Turning to the inquiry under Tinker, the Court found that there was no likelihood of substantial disruption or interference with other students’ rights.  First of all, plaintiff peacefully kneeled during at least one home game with no disruption.  As for the incident at the away game, that occurred hours after the protest and the threats were minimal and did not lead to physical violence.  Moreover, there is little likelihood of this incident repeating, because the school district requested that the particular school be removed from their schedule in the future.

Applying Tinker, the court found that the plaintiff was likely to succeed on the merits, because both the memorandum issued on October 11, and the draft school board policy are aimed at regulating peaceful protest which is not designed to cause a disruption.  Indeed, the draft policy specifically applies to peaceful political protests, which do not result in disruption.

As for irreparable harm, the court relied on cases holding that the loss of First Amendment freedoms, even for minimal periods of time, constitutes irreparable harm.  Under binding Ninth Circuit precedent, a colorable First Amendment claim is irreparable injury sufficient to merit the grant of injunctive relief.

Because the record did not support the Superintendent’s claims that the policy had been abandoned, that it applied to away games, and that the School Board had not rejected the draft policy, plaintiff is likely to suffer irreparable harm in the absence of an injunction.  The initial rules were clearly still in effect, the court held, because, by their own terms, they remained in effect until further notice, pending the adoption of a policy by the School Board.  Neither condition has yet been satisfied – no notice rescinding the rules has been issued and the school board has still not acted to adopt a policy which would supercede the rules.

Finally, the court addressed the last two factors – the balance of equities and the public interest.  Here, the court found that the District faced no risk of harm because it did not anticipate playing the anthem at District-hosted basketball games.  But the Plaintiff faces a risk of harm to his First Amendment rights if they are infringed for even a single game.  And the Ninth Circuit consistently recognizes the significant public interest in upholding free speech principles.

Given this, the court concluded that the Plaintiff was entitled to a preliminary injunction, which it issued.

Protests during the National Anthem have been stirring up controversy since Colin Kaepernick began engaging in them at the start of professional football games.  But this is not a close case.  The court was correct that students retain the right to engage in political speech, even while at school-sponsored events, so long as the speech at issue does not cause a substantial disruption.  In this case, one minor incident during an away game, which took place hours after the protest, does not rise to this level.  Nor should it.  The problem with the Tinker standard is it allows a heckler’s veto, wherein people can prevent objectionable speech merely by reacting badly to it.  In almost no other context does the Court cabin the rights of a speaker, based on the reactions of the listeners.  Here, V.A. engaged in peaceful protests, both kneeling and walking off the basketball court during the playing of the anthem, without causing any major incidents – in fact, other than the one away game, the record is devoid of any reaction to V.A.’s protest.  His speech was not vulgar, lewd or obscene, and no one could mistake his protest as being on behalf of the school, particularly where the District employees, in the form of the coaches, did not participate in the protest.  As such, V.A. retains the right to express his personal political opinion, even while attending a school-sponsored event.

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