U.S. Judge Bars District Policy Against Kneeling During National Anthem

By Mark Walsh — January 02, 2018 3 min read
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A federal district judge has granted a preliminary injunction blocking a California school district’s rules requiring students to stand during the National Anthem at sporting events.

The case was prompted by a varsity football and basketball player at San Pasqual Valley High School who kneeled during the anthem at two games in the fall. The student, identified as V.A., engaged in the protest to express his “personal feelings and concern about racial injustice in our country,” he said in a court declaration.

Similar protests have occurred at high schools across the country, similar to protests carried out by National Football League players this season. The high school incidents have led some districts to adopt rules against kneeling during the anthem.

V.A.'s silent protest occurred without incident at a Sept. 29 home game, but the next week, when he took a knee during the anthem played in Mayer, Ariz., some students from Mayer High School approached V.A. after the game and threatened to “make him stand,” court papers say. Court papers also allege that the students made racial slurs and sprayed a San Pasqual High cheerleader with water.

After that game, Superintendent Rauna Fox of the San Pasqual Valley Unified School District bordering Arizona in the very southeast end of the state, issued “initial rules” requiring students and coaches to stand during any playing of the anthem.

“Kneeling, sitting or similar forms of political protest are not permitted during athletic events at any home or away games,” the rules said. “Violations may result in removal from the team and subsequent teams during the school year.”

The district decided not to play the anthem at San Pasqual High’s subsequent final football game of the season, and it does not play the anthem at basketball games. When the anthem was played at an away basketball game on Nov. 28, V.A. left the basketball court and waited outside.

The school board has considered a draft permanent policy but has not taken any action.

V.A. filed a lawsuit challenging the initial rules as violating his free speech rights.

In a Dec. 21 decision granting V.A.'s request for the preliminary injunction against the rules, U.S. District Judge Cynthia Bashant of San Diego agreed that the rules appear to violate the First Amendment rights of students.

“The court finds that plaintiff’s kneeling during the National Anthem is speech,” Bashant wrote. “This action is closely linked to the similar, well-known protests performed throughout the country, started by former National Football League quarterback Colin Kaepernick.”

Bashant said that by kneeling, rather than standing, during the National Anthem, V.A. was expressing a similar protest to, in the student’s words, “racial injustice in our country.”

The judge said V.A.'s silent protest would be easily interpreted as his own speech and not bearing the “imprimatur” of his school. She also held that V.A.'s protest was not likely to cause substantial disruption at school, despite the reaction at Mayer High School. Bashant based most of her decision on the U.S. Supreme Court’s landmark 1969 ruling in Tinker v. Des Moines Independent Community School District, which upheld students who wore black armbands to protest the Vietnam War.

“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,” the judge wrote.

A version of this news article first appeared in The School Law Blog.