San Pasqual attorney says injunction over anthem protest is ‘moot’

The San Pasqual Valley Unified School District cannot stop students from kneeling during patriotic songs played at extracurricular events, including athletic games, or “require any action” from them, a court has said. The school district’s attorney says the matter is no longer an issue.

U.S. District Court District of Southern California Judge Cynthia Bashant granted a preliminary injunctive request from a San Pasqual football and bas-

ketball athlete Dec. 21 after attorneys for both sides met in court to argue their respective points Dec. 19.

At issue is whether the student may exercise his free speech rights by taking a knee at athletic events after memos were issued Oct. 11 and Oct. 12, preventing students and staff from doing so; the memos, also referred to as “letters” and “initial/temporary rules” in court documents, also required students, staff and coaches to stand for the anthem at home and away games or face the possibility of disciplinary action. The memos, one of which had been posted under the “news” section of the district’s website, have since been removed.

“No staff member or student was ever required to stand for the anthem and no student has ever been disciplined or otherwise sanctioned for refusing to stand for the anthem,” the school district’s attorney, Robert “Bob” Thurbon, wrote in a Dec. 18 response to the motion for the temporary restraining order, which was lifted upon the issuance of Bashant’s preliminary order Dec. 21.

Thurbon said in an interview with the Yuma Sun on Thursday the preliminary order was already “moot” when it was filed Dec. 21.

“That preliminary injunction was already moot when it was entered because the district had abandoned the temporary rules in favor of moving forward with a permanent policy,” he noted.

The district, in a letter by Superintendent Rauna Fox and titled “October 6, 2017 Events at Mayer, AZ-Clarification, Questions and Answers” posted with a Dec. 20 date on its website, gave answers to several questions posed by community members. Fox noted a proposed facilities use policy was tabled by its board of trustees just before the lawsuit was filed Dec. 8. The proposed policy was listed on the Dec. 12 agenda under “future items” but was not discussed, and Thurbon said the proposed policy has since been dropped.

The court’s preliminary order, which was issued Thursday, Dec. 21, noted that nothing declaring the memos abandoned had been posted online, nor was there evidence proving that the information had been distributed to the plaintiff or other students or staff.

“Additionally, the Board failed to adopt a policy that would supersede the Initial Rules. Defendants argue that the Board’s declining to adopt the Draft Policy ‘effectively vacated’ the Initial Rules (ECF No. 8 at 13), but again, Defendants fail to provide support to substantiate this procedure. With Plaintiff’s First Amendment rights at issue, the Court is unwilling to accept ‘effectively vacating’ the Initial Rules over actually vacating the policy. Without a clear record stating that the Initial Rules are no longer in effect, the Court finds that Plaintiff will be irreparably harmed by its enforcement,” Bashant wrote.

The Sun was unable to verify the timeline with the student’s attorneys nor the court due to holiday closures. Thurbon was unsure of the timeline, as he did not have a copy of the court docket in front of him during Thursday’s interview with the Yuma Sun.

Bashant, basing her order on Tinker v. Des Moines (1969), pointed out that kneeling is a personal expression of speech.

“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,’” Bashant wrote, citing Tinker.

Bashant wrote “The Court finds that Plaintiff is likely to succeed on the merits because, under Tinker, 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.”

“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,” Bashant wrote.

Thurbon said Thursday there is nothing for the district to enjoin, a formal legal term, that means “for a court to order that someone either do a specific act, cease a course of conduct or be prohibited from committing

a certain act,” according to the www.Law.com dictionary.

Thurbon noted in arguments filed Dec. 19 that because the district no longer played the anthem at its athletic events, the student’s opportunity to protest was removed, thus nullifying the request for injunctive relief.

Thurbon said the school district was not “formally” served the required legal documents (the initial complaint and the summons) until after Bashant’s preliminary injunction order was served on Friday (Dec. 22).

What happens next, Thurbon said, is that the school district has 20 days to file a formal response, which should be filed in mid-January.

“In the months ahead, we still have to have, ultimately, the final hearing on all of the issues of the case,” he explained, “including whether or not the preliminary injunction is going to survive and become a permanent injunction.”