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Bush Gottlieb Protects High School Students’ Right to Protest

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Jan 13, 2018

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Bush Gottlieb has persuaded the United States District Court in San Diego to safeguard a public high school student athlete’s constitutional protest rights against a school’s attempt to prohibit him from kneeling during the playing of the National Anthem. The student, a Native American football and basketball player attending San Pasqual Valley High School in Winterhaven, California, wanted to kneel in protest of racial injustice. After the second football game in which the student kneeled, on the road in Mayer, Arizona, Mayer fans hurled racial insults at San Pasqual players. In reaction to that incident, the San Pasqual School District Superintendent issued a policy directing students not to kneel or engage in any other protest, but instead to stand hatless during the playing of the anthem. The Superintendent’s memo stated that disobedience of the policy could result in the school kicking the student off his team, and denying him the right to play on future school teams.

When the District refused to rescind the policy, Bush Gottlieb sued the District in federal court, on the grounds that the policy violated the First Amendment and the California Education Code, which afford protection for public school student expression. On December 21, the District Court issued a preliminary injunction prohibiting the District from implementing or enforcing the policy. The Court in holding that the policy likely violated the First Amendment, noted that “schools may regulate students’ speech in some limited circumstances”, but declared that “public school students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court ruled that 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.”  Ira L. Gottlieb, Lisa C. Demidovich, Katie Traverso and Kiel Ireland worked on the case; Ms. Traverso presented the winning oral argument for the preliminary injunction in court.