Court orders school district to allow protests during anthem
San Pasqual students can take a knee temporarily after judge’s ruling
Athletes and coaching staff at San Pasqual High School will be able to take a knee during the national anthem at home and away games, at least through Tuesday, following a court order.
U.S. District Court Southern District of California Judge Cynthia Bashant issued a temporary restraining order Wednesday after an athlete’s attorneys filed a request Dec. 8 for a preliminary injunction against the district’s Oct. 12 policy prohibiting student and coaching staff from protesting during the presentation of the national anthem. The Oct. 12 policy stated that students risked “removal from the team and subsequent teams during the school year.”
Bashant’s ruling noted the student-athlete, who protested during several football games, intended to protest at their first basketball game Dec.15. Bashant noted the athlete had informed the district of his intent, asked for a legal response, and hearing none, filed the injunction. Bashant wrote that the district “chose to formally object only after Plaintiff would be irreparably harmed.”
The case stems from a policy set forth Oct. 12, after San Pasqual students protested during the national anthem at a football game in Mayer, Ariz., and were subjected to verbal and physical threats by the community there, according to a previous article in the Yuma Sun and the initial court complaint.
The Oct. 12 policy, as stated in the ruling, said “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.”
The student sought relief
from the court to protect not only his free speech and non-compulsion rights, but also the rights of students and staff, his attorneys wrote in the complaint.
The Oct. 12 policy, the student’s attorneys wrote, would “force V.A. (varsity athlete) to give up his rights to free expression if he wants to continue to be a successful high school athlete …. Specifically, Plaintiff seeks to vindicate and protect his right to silently kneel during the playing of the national anthem at school athletic events.”
San Pasqual Valley Unified Superintendent Rauna Fox said Thursday afternoon that students’ protesting during the anthem were brought to her attention in late September, when National Football League players were facing scrutiny over kneeling or sitting during the anthem to protest racial inequality and injustice. The protest method remains a point of contention and has sparked a national debate on the issue.
Fox said the Oct. 12 policy was put in place with student safety in mind and it had been reviewed by the district’s attorney.
“Student safety is always the first priority of the District,” Fox wrote Thursday. “It is the responsibility of the District to ensure that students are safe at all times.”
Bashant wrote for the court that the scope of the temporary restraining order was very narrow, “as it only suspends the enforcement of the district’s policy for actions during the national anthem played at athletic events.”
Fox noted on Friday afternoon “the district does not play the national anthem at winter and/or spring sporting events.”
Kenrick Escalanti, who was the announcer during the district’s football season, confirmed the district had stopped playing the anthem at athletic events.
“Apparently now (the district is) saying that they now have the right to not play it, and that it’s not a typical protocol or standard operating procedure now, where it always was before,” he told the Yuma Sun. “And they stopped it at that home game, that home football game, and they haven’t done it ever since.”
The Sun reached out to the student’s attorney Franchesca Verdin, to inquire if the school’s procedure of not playing the anthem would nullify the student’s First Amendment question, but a reply was not received by press time.
The board held a special meeting Nov. 28 to vote on a new facilities use policy, BP 1330.2, but no text was included in the Nov. 28 agenda. The introduction of the facilities use policy was tabled at that special meeting, according to Bashant’s ruling. The item was then added to the future agenda items of the Dec. 12 meeting to be addressed at a later board meeting.
According to the Dec. 12 agenda, the proposed policy would prohibit the use of the school’s facilities as “public forums for the purposes of the exercise of political activism, including but not limited to campaign activities, national anthem protest, other peaceful protest or other political activities.” Fox said it was “the will of the board to have (BP 1330.2) placed twice on the agenda to allow for further review and questions prior to voting.”
The temporary restraining order from the court requires the district to respond to the student’s motion by Dec. 18 at noon, and requires the two sides to appear in court on Dec.
19 for oral argument on the initial motion.
“The case has been handed over to the District’s legal counsel, Robert Thurbon,” Fox said.
The injunction named Fox, high school Principal Darrell Pechtl and every member of the district’s trustees who were in office as of Dec. 8. Two new board members were sworn in Tuesday evening, Tomas Jefferson and Sofia Dominguez. They replaced Rebecca Ramirez and Monica Montague, who was the board’s president.