A group of student athletes on a high school basketball team, who were suspended after they spoke out against their coach and boycotted a game, were given a second chance by the 9th U.S. Circuit Court of Appeals concerning their claim that the school retaliated against them.
In reversing the district court, the panel of judges found that the petition calling for the ouster of the coach was, in fact, a constitutionally protected activity. However, it concurred with the judge that the actual boycott of the game was not protected. Thus, the panel remanded the case to the lower court to determine whether the school’s decision to permanently suspend the players was related to the protected or unprotected actions.
The incident occurred more than five years ago, when eight former members of the 2000-01 Clatskanie High School varsity boys basketball team in Clatskanie, Oregon grew increasingly frustrated with how they were being treated by the head coach Jeff Baughman.
The situation came to a head when the team signed a petition calling for the coach’s ouster. The day that the petition was delivered to the coach, the team was supposed to play an away game. Earlier that day, administrators presented the players with two options: “the players could participate in a mediation process with the two of (the administrators) serving as mediators and board the team bus for the game that evening, or they could adhere to their position and forfeit their privilege to play in the game.”
The court noted that “the plaintiffs contend that neither (administrator) advised them that they would be disciplined further for choosing the second option. The meeting ended without the players expressing whether they intended to board the bus.”
The same day, Baughman informed the administrators that he was not going to coach the game that evening, a development that was not passed on to the players. The players did not board the bus, and their place was taken by the JV team.
The next day, the administrators met with the plaintiffs. “According to two of the parents in attendance, (they) announced that ‘all of the players who signed the petition were permanently suspended from the team.’”
The plaintiffs sued on February 7, 2003, alleging that the defendants punished them for complaining about Baughman in violation of the First Amendment. The defendants successfully moved for summary judgment. The district court concluded that the plaintiffs “‘were not engaged in a constitutionally protected activity’ because the plaintiffs’ speech ‘was not a matter of public concern nor political in nature,’ but instead was akin to speech that ‘addressed merely a private grievance against a school employee, with no political dimension.’ In the alternative, the district court concluded that even if the plaintiffs’ speech was constitutionally protected, their conduct ‘substantially and materially interfered with a school activity,’ giving the school district authority to punish them. The plaintiffs timely appealed.”
The panel found that “the district court erred in adopting from the government employment context the public concern standard for determining whether the First Amendment protects student speech. Under the proper standard articulated in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 514, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), the students’ petition and complaints against the coach were protected speech because they could not reasonably have led school officials to forecast substantial disruption of, or material interference with, a school activity.
“However, we agree with the district court that the students’ refusal to board the bus was not protected by the First Amendment because, even if expressive conduct, it substantially disrupted and materially interfered with the operation of the varsity boys basketball program.”
The panel noted that “school districts spend much time and money scheduling and hosting their extracurricular events, all of which involve the coordination of multiple school officials, students, parents, and often times volunteers, referees or judges. When students decide not to participate in an extracurricular school activity on the day it is scheduled to take place — particularly one involving a competition against another school — their conduct will inevitably disrupt or interfere with the activity, because school officials must either execute a contingency plan to see that the activity occurs or cancel it. This disruption or interference occurs even when school officials avoid canceling the activity by resorting to a backup plan, which itself constitutes a disruption. Thus, even if we viewed the plaintiffs’ boycott as symbolic speech under the First Amendment, Tinker permits the officials to punish the plaintiffs’ conduct because they forced the school officials to choose between replacing the plaintiffs with less experienced players or canceling the game — both disruptive options.”
This rationale delivered the panel to the question of whether the players were suspended for speaking out or boycotting the game. This decision was better left to the lower court.
Jacob Pinard et al. v. Clatskanie School District; 9th Cir.; No. 04-35574; 2006 U.S. App. LEXIS 10797; 5/1/06
Attorneys of record: (for plaintiffs) Michael R. Seidl (argued) and Lori K. DeDobbelaere, Seidl Law Office, P.C., Portland, Oregon. (for defendants) Peter R. Mersereau (argued) and Thomas W. McPherson, Mersereau & Shannon, LLP, Portland, Oregon.
