High school basketball protest gives rise to free speech claim

This is an unusual case, but not so unusual that the defendants are entitled to qualified immunity as a matter of law. It involves public school parents who did not like how the girl's high school basketball coach was managing the team. It turned into a First Amendment case.

The case is Frierson v. Reinisch, a summary order issued on March 26. Plaintiff was one of the student-athlete's parents. He met with the student-athletes who were contemplating some kind of bold action to protest the coach. Some suggested the girls basketball team walk off the court during a game. No such walk-out took place, but Reinisch,  the athletic director for the Troy City School District, had heard about all of this and investigated the "rumor" of a student protest. A videotape from the school showed plaintiff meeting with some of the players. There was no audio. Reinisch next told plaintiff that he was banned from attending future school district sporting events.

The district court said plaintiff has properly asserted a First Amendment case, and that the law was clearly established that, if plaintiff's allegations are believed by a jury, defendants cannot invoke qualified immunity, which attaches when the case law on the precise issue raised by the case is unclear and the defendant public officials are therefore not on notice that they are violating the Constitution. The Second Circuit (Carney, Wesley, and Menashi) affirms, and the case now proceeds to trial.

The law was clear for a case like this because the Second Circuit held in Johnson v. Perry, 859 F.3d 156 (2d Cir. 2017), had already addressed a case like this. "In the specific context of retaliation by a school official restricting access to athletic events, we have said that where, as here, a public school invites parents and other spectators to attend sporting events held in its gymnasium, the gymnasium operates as 'a limited public forum' and the school may restrict access to a limited public forum only when (1) 'its restrictions are reasonable and viewpoint-neutral,' or (2) 'there is a clear and present danger of disruptions such as disorder, riot, obstruction of the event, or immediate threat to public safety.'”

The facts in Perry are similar to this case. In Perry, the father "was banned after complaining to school administrators that his daughter, a member of the varsity basketball team, wanted to quit the team because the coach was treating her unfairly. When the father learned that school officials were pressuring his daughter to remain on the team, he met with the principal, and the two exchanged heated words. The following day, the principal informed the father that he was banned from attending all future school sporting events, purportedly because the father’s 'verbal altercations, physical intimidation and direct threats to staff ha[d] created an unsafe environment for staff, students and other parents.'” Since the jury could find that the father in Perry posed no threat to anyone and the principal's motive in banning him from future sporting events was retaliatory, the father had a case. That's the situation before the Second Circuit in Frierson.