The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I blogged about this case last week, when a temporary restraining order was issued; yesterday, the court issued a longer-term preliminary injunction, with a longer discussion — here's the key analysis:
Plaintiff is a high school senior at San Pasqual Valley High School …, who played or plays on the School's varsity football and basketball teams…. During the recent 2017 football season, Plaintiff began to silently kneel during the National Anthem. Plaintiff's decision to kneel was aimed at expressing his "personal feelings and concern about racial injustice in our country." He stated that he wanted to provide a reminder that "racial injustice in our country" exists, "which we must not tolerate." For the upcoming basketball season and other sport seasons, Plaintiff intends to kneel during the National Anthem when it is played.
At a home football game on September 29, 2017, Plaintiff kneeled during the National Anthem, and did so peacefully and without incident. The following week, at an away game played in Mayer, AZ, Plaintiff kneeled again during the National Anthem, and again did so peacefully. However, after the game was played, a few students from Mayer High School approached some of the School's students, made racial slurs, threatened to force Plaintiff to stand, and sprayed a water bottle at the School's students, getting one cheerleader wet. In reaction to this incident, the School's principal, Defendant Darrell Pechtl, spoke with Plaintiff's mother, and he expressed that he thought Plaintiff's actions could be seen as "disrespectful" to the other school….
Following the October 6, 2017 football game, the District's superintendent, Defendant Rauna Fox, states that she received feedback from community members, parents, and staff regarding how the District would address the Mayer High School students' behavior. She also received concerns regarding how the District would "ensure safety to staff and students" at the next football game…. On October 11, 2017, Defendant Fox issued a memorandum to the District's coaching staff ("Initial Rules"), which stated:
Students and coaches shall stand and remove hats/helmets and remain standing during the playing or singing of the National Anthem. Kneeling, sitting or similar forms of political protest are not permitted during athletic events at any home or away games. Violations may result in removal from the team and subsequent teams during the school year.
[W]ithout clear evidence showing otherwise [and despite some dispute about the matter -EV], it appears that the Initial Rules continue to be in effect and enforceable at this time….
[T]he Board [then] asked Defendants' counsel, who also serves as the District's general counsel, to draft a facilities use policy to "exclude[ ] any type of political activism or protesting" ("Draft Policy"). The Draft Policy states, in short:
Students and staff members participating in extracurricular programs and interscholastic activities may not engage in political activism [including but not limited to kneeling, sitting, or other forms of political protest during the playing or singing of the National Anthem] during the time reserved for such events. Students or staff members engaging in political activities including peaceful political protest during the time reserved for these events are subject to removal from the event and facility and may be denied participation in future extracurricular activities and interscholastic athletic competitions, events and practices.
The Draft Policy remains a draft and has not been adopted as District policy….
The Court finds that Plaintiff is likely to succeed on the merits because, under Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969), 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. See also W. Va. State Bd. of Educ. v. Barnette (1943) ("[T]he action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the FirstAmendment to our Constitution to reserve from all official control.").
Though 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." In other words, students "cannot be punished merely for expressing their personal views on the school premises — whether 'in the cafeteria, or on the playing field, or on the campus during the authorized hours.'" …
Kneeling is Speech
It is well settled that certain actions, though not spoken, are considered speech and protected by the First Amendment. See Barnette ("Symbolism is a primitive but effective way of communicating ideas.") This is especially true when these actions involve other patriotic acts. Id. ("There is no doubt that, in connection with the pledges, the flag salute is a form of utterance.").
The Court finds that Plaintiff's kneeling during the National Anthem is speech. This action is closely linked to the similar, well-known protests performed throughout the country, started by former National Football League quarterback Colin Kaepernick. It is clear to the Court that by kneeling, rather than standing, during the playing or singing of the National Anthem Plaintiff is expressing a similar protest to "racial injustice in our country." Plaintiff also states that he intended to express this opinion.
Legal Standard Under Tinker Applies
"The schoolroom prepares children for citizenship, and the proper exercise of the First Amendment is a hallmark of citizenship in our country." Chandler v. McMinnville Sch. Dist. (9th Cir. 1992). But this practice of citizenship is not without its limitations. While schools prepare students for adult experiences, a school is not required to ensure a full adult experience while on campus, especially if such experiences would interfere with the school's "basic educational mission." Thus, courts have found that "the determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board," rather than with the judiciary. Because school officials have a better sense than courts of how to best monitor this speech, a school can permissibly regulate three categories of speech with varying standards:
(1) vulgar, lewd, obscene and plainly offensive speech is governed by Bethel School District v. Fraser (1986);
(2) school-sponsored speech is governed by Hazelwood Sch. Dist. v. Kuhlmeier (1988); and
(3) speech that falls into neither of these categories is governed by Tinker.
It is clear that Plaintiff's actions are not "vulgar, lewd, obscene, [or] plainly offensive" speech, nor is Plaintiff's silent kneeling during the National Anthem at a sports game "school-sponsored speech." Cf. Fraser (finding a speech at an official school assembly containing an "elaborate, graphic, and explicit sexual metaphor" was offensive speech); Hazelwood (holding that a school newspaper produced in a journalism class taught by a faculty member during regular class hours and where the students received grades was school-sponsored speech). Instead, Plaintiff's quiet protest at an extracurricular activity falls within the speech governed by Tinker. See also Hazelwood (distinguishing between "a student's personal expression that happens to occur on the school premises" and an "educators' authority over school-sponsored [activities] that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school"). A school has less of an interest (and receives less deference) when restricting a student's speech that expresses the student's personal opinion, rather than when the student's opinion is blended in and interpreted as being that of the school's.
Here, even though his actions occur during a school sanctioned activity, Plaintiff's kneeling during the National Anthem is easily interpreted and distinguished as his own expression, and not that bearing the school's imprimatur. By silently kneeling on the sideline, Plaintiff's protest to racial injustice sends a personal message to the community that is akin to an individual student's display of a button or an armband during school hours. The expression is easily interpreted as his own, rather than the school's, much like Colin Kaepernick's expression is interpreted as his own, and not imputed to the San Francisco 49ers.
Moreover, Plaintiff's kneeling in protest during the National Anthem expresses an opinion that is opposed to the school's decision to play the National Anthem with the expectation that students will stand. The record shows that any reasonable person would interpret Plaintiff's expression as being separate and apart from the School's opinion. Accordingly, the Court analyzes the Initial Rules under Tinker.
No "Likelihood of Substantial Disruption" or Interference with Other Students' Rights
In Tinker, the Supreme Court found that a school can regulate students' speech if the school shows "facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities" or interference "with the rights of other students to be secure and to be let alone." Even so, the Supreme Court found that students wearing black armbands to protest the Vietnam War "was a silent, passive expression of opinion, unaccompanied by any disorder or disturbance" that "neither interrupted school activities nor sought to intrude in the school affairs or the lives of others." Id. ("Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk…."). Thus, the First Amendment protected the students' expression and prohibited school officials from regulating this form of expression. Compare id., and Chandler, 978 F.2d at 530 (rejecting school's argument that students wearing buttons that said "scab" to express their support of a teachers' strike were inherently disruptive), with Taylor v. Boswell Indep. Sch. Dist. (10th Cir. 2013) (holding school officials could regulate students' free speech rights to prevent them from distributing rubber fetus dolls after a distribution of 2,500 dolls resulted in various "doll-related disruptions").
Plaintiff's silent kneeling during the National Anthem is not likely to cause a "substantial disruption of or material interference with school activities" or interfere with other students' safety. Tinker. When Plaintiff first knelt, he did so peacefully and without incident. Plaintiff also knelt peacefully at the second football game.
It was only hours following Plaintiff's protest, and after the football game, that students from a different school made racial slurs and threw water at a few of the School's students. Even so, this incident does not rise to a "substantial disruption of or material interference with school activities," nor does it interfere with the students' safety. Tinker (finding that "a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises").
The football game was played as scheduled and, while the Court does not minimize the impact of racial slurs and threats, the threats were minimal and did not lead to any physical violence. The students' threats were to "force" Plaintiff to stand, and the only action taken was water being tossed from a water bottle, getting one student wet. The School's principal confirmed that there was no evidence of a fight during or after the game. Additionally, the likelihood of this incident happening again is reduced because the School requested that Mayer High School be removed from its upcoming football schedule.
The Court finds that, when applying Tinker, Plaintiff is likely to succeed on the merits because the Initial Rules, as well as the proposed Draft Policy, are aimed at regulating students' speech that is unlikely to cause a substantial disruption of or material interference with school activities or interfere with other students' rights….
Accordingly, the Court ENJOINS Defendants, serving in their official capacities, as well as Defendants' officers, agents, servants, employees, and attorneys, from enforcing the District's Initial Rules and/or temporary requirements on National Anthem political protests as stated in its October 11, 2017 memorandum and October 12, 2017 letter from Superintendent Rauna Fox; the District's Draft Policy (BP 1330.2), currently titled "Use of Facilities or Grounds for Political Activities"; or any other similar policy that would:
(a) restrict Plaintiff's or other students from kneeling or sitting during the playing or singing of the National Anthem at extracurricular events, including athletic events; or (b) require any action from Plaintiff or other students during the playing or singing of the National Anthem at extracurricular events, including athletic events ….