Pinard v. Clatskaine School District 6J, No. 04-35574 (9th Cir. May 1, 2006)

The U.S. Court of Appeals for the Ninth Circuit has ruled that student speech need not be on a matter of public concern in order to enjoy First Amendment protection. The court concluded that a petition by a group of Oregon high school basketball players calling for their coach’s resignation and their complaints about his conduct were protected speech. However, the players’ boycott of a game was not protected under the standard established by the U.S. Supreme Court in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). Eight members of the Clatskanie High School (CHS) boys’ varsity basketball team presented their coach with a petition calling for his resignation. Later that day they told school officials they acted after the coach repeatedly had verbally abused and intimidated them. The players stated that they would not play in the game that night unless the coach were removed. School officials told them that they could either agree to mediation or forfeit the privilege of playing in the game. All but one of the players refused. The next day school officials informed these players and their parents that they were permanently suspended from the team. When the superintendent and the school board upheld the suspensions, the players sued, alleging the suspensions were unlawful retaliation for the exercise of First Amendment rights. The U.S. district court dismissed the case on the ground that the players had not engaged in constitutionally protected activity because their speech "was not a matter of public concern nor political in nature" but instead was akin to speech that address[ed] merely a private grievance against a school employee, with no political dimension." Even if the speech were constitutionally protected, the court ruled, school officials were justified in disciplining the players because the conduct "substantially and materially interfered with a school activity."
       The Ninth Circuit reversed in part, affirmed in part, and remanded. The appeals court rejected the defendants’ argument that the players’ petition, refusal to play, and complaints amounted to "concerted action" and one "course of conduct" that in its entirety was constitutionally subject to discipline under Tinker. The petition and complaints were a form of pure speech, the court reasoned, which, under the principles enunciated in Tinker, protected the players from discipline unless school officials demonstrated "facts which might reasonably have led [them] to forecast substantial disruption of or material interference with school activities" as a result specifically of these activities. The Ninth Circuit also rejected the district court’s approach to Tinker, concluded that Tinker does not contain the "public concern requirement applicable in the government employment context." Neither the U.S. Supreme Court nor any other federal appellate courts have held that this factor is applicable in student speech cases, the appeals court found. Rather, "Tinker’s test for determining whether the First Amendment protects ‘third category’ student speech examines only the effect of the speech on school activities and the rights of others." The court concluded that all student speech that is neither school-sponsored, a true threat, nor vulgar, lewd, obscene, or plainly offensive is entitled to First Amendment protection from discipline or regulation unless school officials "can show facts which might reasonably have led [them] to forecast substantial disruption of or material interference with school activities." The defendants already had conceded that neither the petition nor the complaints disrupted school activities or interfered with the rights of others. However, the court found that school officials had acted constitutionally when they disciplined the players for refusing to play, because this expressive conduct did substantially disrupt and materially interfere with a school activity.
       As to whether school officials engaged in retaliation, the Ninth Circuit pointed out that the lower court had not reached the question of whether the suspensions were meted out only for the refusal to play or also for the petition and complaints. In remanding the case, the appellate court spelled out the elements of retaliation claim: (1) the students were engaged in a constitutionally protected activity; (2) the defendant’s actions would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) the protected activity was a substantial or motivating factor in the defendant’s conduct. The first two elements of this test were met with respect to the petition, the court noted. The court remanded the case to the district court with clear directions to: "decide whether, viewing the evidence in the light most favorable to the plaintiffs, the record would permit a jury to infer that [the principal] punished the plaintiffs not simply for boycotting the game but also (or only) in retaliation for their having complained about [the coach] and requested his resignation in the first place. If so, the defendants are not entitled to summary judgment unless they can show that they would have imposed a permanent suspension even in the absence of the plaintiffs’ petition and complaints against [the coach]."

[Editor’s Note: COSA members and board members and employees of NSBA National Affiliate school districts can access an overview, below, of recent litigation related to school athletics.]