by Meganne Trela (Winter 2018)

Inspired by the National Anthem protests of NFL players, high schools around the country are starting to see student athletes take a knee during the playing of the National Anthem at school sporting events. With the controversy surrounding the protests at an all-time high this past Fall, it’s not surprising that many school administrators, coaches, and staffs are left wondering how to react to student athletes participating in the protests. The United States District Court for the Southern District of California recently addressed the issue in V.A. v. San Pasqual Valley Unified School District, 2017 WL 6541447 (S.D. Cal. Dec. 21, 2017). In granting the student’s motion for preliminary injunction, the court found that a student’s decision to kneel during the playing of the National Anthem was protected free speech.

V.A. was a member of the San Pasqual Valley High School (SPVHS) varsity football and basketball teams. He began kneeling during the playing of the National Anthem at football games in the 2017 season. V.A. wanted to express his personal concerns with racial injustice in America. When V.A. kneeled at the first home game, it was done peacefully and without incident. At an away game the following week, he was able to kneel peacefully during the National Anthem; however, after the game, students from the opposing high school approached students from SPVHS, made racial slurs, threatened to force the kneeling student to stand, and sprayed a water bottle at another student.

After receiving concerns about student safety at athletic events, the district superintendent issued a memorandum to the coaching staff stating that “[k]neeling, sitting or similar forms of political protest are not permitted during athletic events at any home or away games.” The rule was in effect “until further notice, pending adoption of a Board Policy.” Students and parents were given notice of the rule. When V.A. attended an away basketball game in November he left the court during the playing of the National Anthem because of the superintendent’s rule regarding kneeling. While the School Board drafted a policy, the draft was never adopted by the Board. To avoid additional controversy, the superintendent recommended that the school stop playing the National Anthem all together. The school district, however, was unable to control whether the National Anthem was played at away athletic events.

V.A. moved for a preliminary injunction, arguing that the district’s policy violated his right to free speech. To seek a preliminary injunction, a plaintiff must establish that (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and 4) an injunction is in the public interest. In determining whether a preliminary injunction was appropriate in this case, the court held that V.A. was likely to succeed on the merits based on the United States Supreme Court’s decision in Tinker v. Des Moines Indep. Cmty. School District, 393 U.S. 503 (1969). In Tinker, the Supreme Court held that a school can only regulate a student’s 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.” In Tinker, the Supreme Court found that students wearing black armbands to protest the Vietnam War could not be regulated because their silent protest did not disturb or interrupt school activities.

In this case, the court reasoned that kneeling during the National Anthem was speech. Although schools are not required to tolerate speech that interferes with basic educational missions, they cannot entirely restrict a student’s right to express his opinions. Based on precedent from the Supreme Court, the court found that student speech that could be restricted fell into three categories: (1) vulgar lewd, obscene, and plainly offensive speech; (2) school-sponsored speech; and (3) speech that did not meet the first two categories but was considered speech covered by the Tinker standard. The court determined that the student’s silent protest by way of kneeling during the National Anthem did not fall within the first two categories, meaning the student’s speech was governed by the Tinker standard.

The court held that the student’s kneeling could not be restricted under the Tinker standard because his silent protest would not likely cause a substantial disruption or material interference with school activities. While the student’s kneeling did cause a reaction from another school well after the National Anthem was played, the reaction did not rise to a level that was likely to cause a substantial disruption. Thus, the fact that spectators from an opposing school reacted poorly to V.A’s exercise of speech was not enough to warrant a policy restricting the student’s First Amendment rights.

The court additionally held that the last three elements of the student’s preliminary injunction were met because the restriction would cause irreparable harm, the balance of equities weighed in favor of the student, and it was in the public’s interest to grant the student’s motion. The court reasoned that the   loss of First Amendment rights – even     if momentary – is unquestionably irreparable injury and there is a significant public interest in upholding the principles of the First Amendment. As a result, the student’s motion for preliminary injunction was granted.

The American public has not heard the last of the controversy surrounding National Anthem protests, and school districts nationwide will likely continue to see student athletes exercising their free speech rights on the sidelines. As the heated debate continues, schools will need to make and defend policy decisions related to student conduct during the National Anthem. It is important that school districts keep in mind the legal standards applicable to students when considering restrictions on student speech to avoid costly legal challenges. If you have questions about student speech, contact an attorney at Ottosen Britz.