Pena Villasano v. Garfield County School District #16 et al

Filing 15

ORDER granting in part and denying in part #3 Plaintiff's Emergency Motion for Temporary Restraining Order and Request to Allow Out-of-State Counsel to Participate Virtually in a Hearing on this Motion. The request for a temporary restraining order is denied, by Judge Nina Y. Wang on 5/26/2023. (Attachments: #1 Attachment 1, #2 Attachment 2, #3 Attachment 3) (ebuch)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 23-cv-01317-RMR
NAOMI PEÑA VILLASANO,
Plaintiff,
v.
GARFIELD COUNTY SCHOOL DISTRICT 16;
LYNN J. SHORE, in his official capacity as President of the Garfield County School District 16
Board of Education;
KIMBERLY S. WHELAN, in her official capacity as Vice-President of the Garfield County
School District 16 Board of Education;
VINCENT T. TOMASULO, in his official capacity as Secretary/Treasurer of the Garfield
County School District 16 Board of Education;
STACI R. MCGRUDER, in her official capacity as a Director of the Garfield County
School District 16 Board of Education;
KEITH GRONEWOLLER, in his official capacity as a Director of the Garfield County
School District 16 Board of Education;
JENNIFER BAUGH, in her official capacity as Superintendent of Garfield County School
District 16; and
KELLY MCCORMICK, in his official capacity as Principal of Grand Valley High School,
Defendants.
_____________________________________________________________________________
ORDER DENYING TEMPORARY RESTRAINING ORDER
_____________________________________________________________________________
This matter comes before the Court 1 on the Emergency Motion for Temporary Restraining
Order and Request to Allow Out-of-State Counsel to Participate Virtually in a Hearing on this
Motion (“Motion” or “Motion for Temporary Restraining Order”) [Doc. 3, filed May 24, 2023] by

1

Due to the unavailability of the presiding judge, the Honorable Regina M. Rodriguez, this
Motion is before the undersigned pursuant to the Memorandum of referral dated May 25, 2023.
[Doc. 5].

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Plaintiff Naomi Peña Villasano (“Plaintiff” or “Naomi”). 2 The Court granted the request to permit
out-of-state counsel to participate virtually in the hearing on May 25, 2023, but reserved ruling on
the remainder of the Motion. [Doc. 12]. The Court convened a hearing on the Motion on May 26,
2023, to hear argument on Plaintiff’s request for a temporary restraining order. Upon review of
the Motion, the arguments made by the Parties, and the applicable case law, this Court respectfully
DENIES the reserved portion of the Motion for Temporary Restraining Order.
BACKGROUND
The following facts are drawn from the Verified Complaint for Injunctive and Declaratory
Relief (“Verified Complaint”) [Doc. 1]; the Declaration of Naomi Peña Villasano [Doc. 3-1]; the
Declaration of Dr. Jennifer Baugh, Superintendent of Garfield County School District 16
(“Defendant Baugh” or “Superintendent Baugh”) [Doc. 13-1]; and evidence in the record of which
the authenticity is undisputed.
Naomi is a high school senior who attends Grand Valley High School in Defendant Garfield
County School District 16 (“Defendant School District” or “School District”). [Doc. 3-1 at ¶ 3].
Her parents immigrated to the United States from Mexico. [Id. at ¶ 4]. Her maternal grandfather,
who helped raise her and with whom she is very close, is from Ocotlán, Jalisco, Mexico. [Id.].
Naomi was born and raised in the United States, and identifies as Mexican American. [Doc. 1 at
¶¶ 27, 30]. As a Grand Valley High School senior, she is set to graduate on May 27, 2023. [Doc.
3-1 at ¶ 3].

2

While this Court generally does not refer to individuals by their first name, it uses “Naomi,”
rather than “Ms. Peña Villasano” because her pleading and Motion does the same.
2

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In March 2023, Naomi discussed with another student during her advisory class at Grand
Valley High School the possibility of wearing a sarape-style 3 sash at graduation to reflect her
heritage. [Doc. 3-1 at ¶ 5]. Naomi’s advisory teacher advised her that she could not wear that type
of sash per a rule of Defendant Kelly McCormick, Principal of Grand Valley High School
(“Defendant McCormick” or “Principal McCormick”). [Id.; Doc. 3-1 at ¶ 5]. On April 5, 2023,
Naomi received a letter addressed to Seniors, setting out Grand Valley High School’s rules with
respect to decorating graduation caps. [Doc. 3-1 at ¶ 6]. Those rules provide, inter alia, that:
It is appropriate to put the following on your cap.
● Thank a parent, grandparent, teacher, friend
● Recognize the university you will be attending
● your graduation year
● the branch of the military you will be joining
● flag of a country as recognized by the the [sic] United Nations
[Id. at 7]. The letter did not address sashes, leis, or other regalia worn with or on graduation gowns.
See [id.].
The following day, Naomi went to Principal McCormick’s office to ask about the school’s
policy regarding her proposed sash, and was told by Principal McCormick’s secretary that she
would not be permitted to wear a sarape-style sash she was considering. [Id. at ¶ 7]. On April 7,
2023, Naomi’s sister-in-law, Alondra Loya (“Ms. Loya”), contacted Principal McCormick about
Naomi’s desire to wear a sarape-style sash for graduation. [Id. at ¶ 9]. Principal McCormick again
affirmed the decision that Naomi would not be permitted to wear a sarape-style sash at graduation.
[Id.]. Principal McCormick also offered to connect Naomi and her family with Dr. Baugh about
her request to wear a sarape-style sash. [Id.].

3

A “sarape” is defined as “a colorful woolen shawl worn over the shoulders especially by Mexican
men.” Sarape, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/sarape (last
visited May 26, 2023).
3

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On April 13, 2023, Naomi and Ms. Loya communicated with Dr. Baugh with respect to
Naomi’s desire to wear a graduation sash reflecting the Mexican and American flags. [Doc. 3-1 at
¶ 9; Doc. 13-1 at ¶ 7]. Dr. Baugh indicated that Naomi could not wear her sash (mistakenly
identified as a pin) because if the School District permitted the wearing of a flag of a country’s
nationality, “there are at least three flags that would be offensive to people because of what they
represent in the past and current history.” [Doc. 3-1 at 9]. In that correspondence, Dr. Baugh
indicated that sashes or cords worn during graduation typically represent membership in a
nationally recognized organization; other distinctions such as class honors; future military service;
or “regalia that is part of a Native American or Pacific Islander tribe.” [Id.]; see also [Doc. 13-1
at ¶ 4]. In her Declaration, Dr. Baugh states that “the School District was prepared on April 13,
2023 to work with Ms. Villasano to bring the question of expressing students’ culture and heritage
in the graduation ceremony to the senior class for their thoughts and wishes within an inclusive
and a democratic process.” [Doc. 13-1 at ¶ 7]. However, the Parties did not engage in such a
process.
On April 19, 2023, Naomi’s brother gifted her a sarape-style sash that displays both the
American flag and the Mexican flag, and bears the words “Class of 2023.” [Doc. 3-1 at ¶ 11]. On
May 3, 2023, Naomi, her mother, and Ms. Loya met with Superintendent Baugh in hopes of
securing permission for Naomi to wear her sash. [Id. at ¶ 13]. Superintendent Baugh denied
Naomi’s request to wear the sash during graduation, but acknowledged that the School District
permits regalia that is part of a Native American or Pacific Islander tribe. [Id.]. Naomi then met
with Superintendent Baugh and Defendant Lynn J. Shore, the President of the Board of Education
(“Defendant Shore” or “President Shore”). [Id. at ¶ 14]. At that meeting, Superintendent Baugh

4

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and President Shore declined to approve of Naomi’s sash based on a School District prohibition.
[Id.].
Defendants do not claim the School District has written rules with respect to sashes and
cords associated with graduation regalia, and the only rules provided to Naomi were with respect
to graduation caps. See [Doc. 3-1 at 7]; see also [Doc. 13-1 at ¶¶ 4–5]. It is also undisputed that
the Board of Education Policy IKFB entitled “Graduation Exercises” does not address graduation
regalia, including but not limited to sashes and cords. See [Doc. 3-2 at 26]. According to Dr.
Baugh, the School District exercises “control over the content of the [graduation] program, the
speeches, and the participating students’ dress and decorum.” [Doc. 13-1 at ¶ 3]. She explains
that “[t]he School District’s rule against personal sashes during the graduation ceremony is
grounded in several concerns, including its interest in avoiding opening doors to speech that could
offend others during a solemn, important ceremony in many families’ lives.” [Id. at ¶ 5]. She also
represents that “[r]estricting the regalia also reserves recognition to future military service,
academic distinction, or school-sponsored activities,” and “having consistent regalia demonstrates
and encourages unity of the student body” because the “graduation ceremony is for all students,
not just one.” [Id.]. Moreover, Dr. Baugh notes that the “graduation ceremony is steeped in
symbolic traditions that signify the graduates’ academic accomplishments and service to the
community” and it reflects “local community values and decisions and an expression of pride in
the graduates’ accomplishments and future endeavors.” [Id. at ¶ 7].
On May 15, 2023, Naomi, through counsel, requested the School District’s Board of
Education members and Superintendent Baugh permit her to wear her sash as she participates in
the Grand Valley High School graduation ceremony. [Doc. 1 at ¶ 43]. The following day, Naomi
attended a regularly scheduled Board of Education meeting to advocate for permission to wear the

5

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sash at graduation. [Id. at ¶ 44]. At the end of the meeting, President Shore stated that the School
District’s rules regarding cultural regalia would remain in effect and be fully enforced at the 2023
Grand Valley High School graduation ceremony, but that the School District would review its
regalia rules during the 2023–2024 school year. [Id. at ¶ 45]. This action followed.
In her Verified Complaint, Plaintiff asserts three causes of action against the School District
and the following individuals in their official capacities: President Shore; Kimberly S. Whelan,
Vice President of the Garfield County School District 16 Board of Education; Vincent T. Tomasulo,
Secretary/Treasurer of the Garfield County School District 16 Board of Education; Staci R.
McGruder, Director of the Garfield County School District 16 Board of Education; Keith
Gronewoller, Director of the Garfield County School District 16 Board of Education;
Superintendent Baugh; and Principal McCormick (collectively, “Defendants”). First, pursuant to
42 U.S.C. § 1983, Plaintiff asserts that Defendants’ unwritten rule prohibiting her from wearing
her Mexican American sash but permitting students to wear sashes celebrating membership in a
“Native American or Pacific Islander tribe” or entry “into a military service” violates the First
Amendment and Fourteenth Amendments of the United States Constitution as impermissible
viewpoint-based regulation of speech (“Count I”). [Id. at ¶¶ 54–57]. Second, Plaintiff alleges that
the School District’s rule violates Article II, Section 10 of the Colorado Constitution (“Count II”).
[Id. at ¶¶ 58–60]. Third, Plaintiff contends that the District’s prohibition of her sash, which depicts
the American flag as well as the Mexican flag, violates Colo. Rev. Stat. § 22-32-109(1)(ii), which
requires school districts to “adopt a policy . . . to ensure that the right of school district employees
and students to display reasonably the flag of the United States shall not be infringed with respect
to the display (I) On an individual’s person; or (II) On an individual’s personal property or property
that is under the temporary control of an employee or a student, including but not limited to a desk

6

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top or a locker” (“Count III”). 4 [Id. at ¶¶ 61–64]. On May 24, 2023, Naomi filed this instant
Motion for Temporary Restraining Order.
LEGAL STANDARD
Federal Rule of Civil Procedure 65 authorizes the court to enter preliminary injunctions
and issue temporary restraining orders. Fed. R. Civ. P. 65(a), (b). “The requirements for issuing
a [temporary restraining order] mirror the requirements for issuing a preliminary injunction.”
Briscoe v. Sebelius, 927 F. Supp. 2d 1109, 1114 (D. Colo. 2013). A party seeking preliminary
injunctive relief must satisfy four factors: (1) a likelihood of success on the merits; (2) a likelihood
that the movant will suffer irreparable harm in the absence of preliminary relief; (3) that the
balance of equities tips in the movant’s favor; and (4) that the injunction is in the public interest.
Petrella v. Brownback, 787 F.3d 1242, 1257 (10th Cir. 2015). A party seeking an injunction must
demonstrate that “all four of the equitable factors weigh in its favor,” Sierra Club, Inc. v. Bostick,
539 F. App’x 885, 888 (10th Cir. 2013), and a “plaintiff’s failure to prove any one of the four
preliminary injunction factors renders its request for injunctive relief unwarranted.” Vill. of Logan
v. U.S. Dep’t of Interior, 577 F. App’x 760, 766 (10th Cir. 2014). “Preliminary injunctions are
extraordinary remedies requiring that the movant’s right to relief be clear and unequivocal.”
Planned Parenthood of Kan. v. Andersen, 882 F.3d 1205, 1223 (10th Cir. 2018).
The Parties agree that the Motion for Temporary Restraining Order seeks all the relief that
Naomi could expect at trial. Under authority from the United States Court of Appeals for the Tenth
Circuit (“Tenth Circuit”), such a disfavored injunction “must be more closely scrutinized to assure
that the exigencies of the case support the granting of a remedy that is extraordinary even in the

4

The Board of Education Policy IMDB provides that “District employees and students have the
right to reasonably display the flag of the United States on their own person, personal property,
and/or property under their temporary control, such as a desk or locker.” [Doc. 3-2 at 28].
7

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normal course.” Schrier v. Univ. of Colo., 427 F.3d 1253, 1259 (10th Cir. 2005) (quoting O Centro
Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004)); Legacy
Church, Inc. v. Kunkel, 455 F. Supp. 3d 1100, 1144 (D.N.M. 2020) (explaining that “[t]here are
three disfavored injunctions: (i) mandatory (rather than prohibitory) injunctions; (ii) injunctions
that change the status quo; and (iii) injunctions that grant all the relief that the moving party could
expect to win at trial.” (citing Mrs. Fields Franchising, LLC v. MFGPC, 941 F.3d 1221, 1232
(10th Cir. 2019))). Accordingly, Plaintiff “must make a strong showing both on the likelihood of
success on the merits and on the balance of the harms.” Colo. v. E.P.A., 989 F.3d 874, 884 (10th
Cir. 2021) (quotation omitted).
ANALYSIS
I.

Likelihood of Success on the Merits
A.

Count I: First Amendment Violation 5

The First Amendment to the United States Constitution provides:
Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.
U.S. Const. amend. I. It is axiomatic that students do not “shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch.
Dist., 393 U.S. 503, 506 (1969). There is no dispute that the Grand Valley High School graduation
is a school-sponsored event. As relevant here, a public school’s ability to restrict in-school
speech—such as Naomi’s decision to wear her sash during her graduation ceremony—consistent

5

Although Plaintiff also identifies the Fourteenth Amendment as a basis for her claim, she does so
insofar as the First Amendment is made applicable to the States by the Due Process Clause of the
Fourteenth Amendment, not as a distinct violation of the Fourteenth Amendment. See 44
Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 516 (1996).
8

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with the First Amendment depends largely on whether the speech is deemed private student speech
or school-sponsored speech. See Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 36 (10th Cir.
2013); see also Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2045–47 (2021) (discussing
standards for off-campus student speech).
Private Speech. The Tenth Circuit defines private student speech as “[p]rivate student
expression that is unconnected to any school-sponsored activity.” Taylor, 713 F.3d at 36. Private
student speech is subject to enhanced protection under the Supreme Court’s cases. Such speech
may not be restricted “unless the school reasonably forecast[s] that the speech would cause
substantial disruption to the school environment” and, even then, such restriction must be
viewpoint neutral. See id. at 36, 46; see also Tinker, 393 U.S. at 514.
School-Sponsored Speech. In contrast, where “students, parents, and members of the
public might reasonably perceive [the speech] to bear the imprimatur of the school,” it is
considered school-sponsored speech. Taylor, 713 F.3d at 36 (quoting Morse v. Frederick, 551 U.S.
393, 405 (2007)). Schools may restrict school-sponsored speech, “provided the restrictions ‘are
reasonably related to legitimate pedagogical concerns.’” Id. (quoting Hazelwood Sch. Dist. v.
Kuhlmeier, 484 U.S. 260, 273 (1988)). Moreover, restrictions on school-sponsored speech need
not be viewpoint neutral. See Fleming v. Jefferson Cnty. Sch. Dist. R-1, 298 F.3d 918, 926–29
(10th Cir. 2002).
In distinguishing these two types of in-school speech, the Tenth Circuit directs courts to
focus on “the level of involvement the school had in organizing or supervising the contested
speech.” Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1228 (10th Cir. 2009). At the
same time, “certain expressive activities may be closely tied to a school, yet not school-sponsored
speech bearing the school’s imprimatur.” Id. The Tenth Circuit has also described the distinction

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as between “student speech that a school ‘affirmatively . . . promote[s],’ as opposed to speech that
it ‘tolerate[s].’” Fleming, 298 F.3d at 923 (quoting Hazelwood, 484 U.S. at 270–71).
1.

The Sash is School-Sponsored Speech

Naomi argues that wearing her sash at graduation is private speech, subject to enhanced
protection, but as mentioned above, she does not dispute that the graduation ceremony is, itself, a
school-sponsored event. The determination whether wearing the sash is private or schoolsponsored speech thus turns on (1) whether a student may engage in private student speech at a
school-sponsored event; and (2) if so, whether Naomi’s sash—the contested speech here—
qualifies as private student speech. Assuming without deciding that it is doctrinally possible to
engage in private student speech at a school-sponsored event, the Court turns to consider “the level
of involvement the school had in organizing or supervising the contested speech” at issue. Corder,
566 F.3d at 1228.
At the outset, the Court recognizes that Naomi received the sash from her family and that
any reasonable observer would believe that the sash “express[es]” Naomi’s “Mexican American
culture” and “Latino heritage,” just as she intends. [Doc. 3-1 at ¶¶ 5, 7]. This Court also recognizes
that there is no suggestion that Naomi seeks to wear the sash, which depicts representations of the
Mexican flag and the American flag, along with the words “Class of 2023,” [id. at 12], with any
malintent. Nonetheless, the question before the Court is whether Naomi’s speech also carries the
School District’s “imprimatur”—or, in other words, whether Naomi’s speech may reasonably be
viewed as the School District’s because of the context in which it is delivered.
Although it is true that many pieces of regalia that complement the cap and gown are worn
at the graduate’s option, this Court finds that, in the context of Grand Valley High School’s
graduation ceremony, any such expression is subject to the School District’s discretion and

10

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supervision as a matter of course. See Fleming, 298 F.3d at 930–31 (tile decoration project
organized by school constituted school-sponsored speech despite participants’ expression in
individual tiles). As stated in Superintendent Baugh’s Declaration, the School District dictates
nearly every aspect of its graduation ceremony. See [Doc. 13-1 at ¶ 3 (“The School District closely
controls the graduation ceremony for students who complete the School District’s academic
program. This includes control over the content of the program, the speeches, and the participating
students’ dress and decorum.”)]. The record reflects that the sashes and cords that are worn at
Grand Valley High School’s graduation are generally associated with school-related activities and
distinctions, e.g., National Honor Society or class rank. [Doc. 3-1 at 9]. The School District’s
policy, albeit unwritten, provides exceptions to that general association for upcoming military
service and regalia that is part of a Native American or Pacific Islander tribe. [Id.]. A sash worn
by a graduating student at her graduation is connected with the school to any reasonable observer
precisely because it is reasonably viewed as part of the graduate’s regalia: a preplanned message
communicated by both student and school in the context of the graduation ceremony. See Corder,
566 F.3d at 1229 (advanced control over content of graduation speech rendered it schoolsponsored).
Indeed, Naomi’s emphasis on the School District’s decision to “allow[] some expressive
sashes while prohibiting hers” is, for school-sponsored speech analysis, a recognition of the reality
that, in practice, the School District controls the attire which graduates wear during the graduation
ceremony. [Doc. 3 at 14]. Even with respect to the graduation caps, Grand Valley High School
has explicit guidelines as to the expressive decorations, and “reserve[s] the right to disallow
anything that is not considered appropriate for commencement ceremony.” [Doc. 3-1 at 7].
These practices are, in turn, reasonably apparent to any graduation attendee facing a group of

11

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similarly attired graduates at a ceremony that has been planned in detail by Grand Valley High
School.

See Corder, 566 F.3d at 1229 (“A high school graduation ceremony under these

circumstances is ‘so closely connected to the school that it appears the school is somehow
sponsoring the speech.’” (quoting Fleming, 298 F.3d at 925)). The School District’s Graduation
Exercises guidance further reinforces this conclusion, as it permits students to organize
“baccalaureate services that are religious in nature,” but expressly notes that “the [S]chool
[D]istrict shall not be identified, explicitly or implicitly, as sponsoring or endorsing such services.”
[Doc. 3-2 at 26]. In contrast, the school does not disclaim graduation attire at the graduation
ceremony. Far from it, when a graduate dons regalia at a graduation ceremony, the message she
sends “bear[s] the imprimatur of the school,” Taylor, 713 F.3d at 36 (quotation omitted), and is
speech that the school “promote[s],” Fleming, 298 F.3d at 923 (quotation omitted), so qualifies as
school-sponsored speech, at least for the duration of the ceremony. 6
2.

The School District’s Rule is Reasonably Related to Legitimate
Pedagogical Concerns

Having concluded that wearing a sash as part of graduation regalia during a graduation
ceremony is school-sponsored speech, the Court turns to whether the School District’s restriction
on Naomi’s ability to do so is “reasonably related to legitimate pedagogical concerns.”
Hazelwood, 484 U.S. at 273. Under governing precedent, that is not a demanding standard for the
School District to meet. See Fleming, 298 F.3d at 931 (referencing “the broad umbrella that courts

6

The Court’s analysis is limited to the speech issues presented by attire involving or supplementing
graduation regalia worn by graduating students during a graduation ceremony, such as sashes,
cords, robes, mortar boards, and the like. That excludes speech by graduating students before and
after the graduation ceremony, as the School District recognizes. See [Doc. 13 at 13 (“Ms.
Villasano may also don her sash before and after the graduation ceremony.”)]. Indeed, at oral
argument, counsel for Defendants suggested that once Naomi received her diploma and her part
of the graduation was completed, she would be free to wear the sash.
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have given to pedagogical purposes”). Indeed, in the commencement context, the Tenth Circuit
has specifically noted that “[a] graduation ceremony is an opportunity for” a school “to impart
lessons on discipline, courtesy, and respect for authority.” Corder, 566 F.3d at 1229. The School
District invokes similar interests here, including unity, tradition, democratic change, and avoiding
controversy. See [Doc. 13 at 8–10]. The Court must credit the School District’s asserted interests.
See Fleming, 298 F.3d at 925 (“[W]e give substantial deference to educators’ stated pedagogical
concerns.”).
Similarly, in Ocansey v. Jefferson Cnty. Sch. Dist. R-1, Case No. 98-M-1099, the plaintiffs
brought three claims based on Arvada High School’s explicit prohibition of their right to wear their
Kente Cloths at the 1998 Arvada High School graduation ceremony: (1) violation of the First and
Fourteenth Amendments; (2) violation of Article II, § 10 of the Colorado Constitution; and
(3) violation of their statutory rights as students attending public school as protected and preserved
by Colo. Rev. Stat. § 22-1-120. See [Doc. 15-1]. Defendants declined to allow the students to
wear the Kente Cloths, citing the interest in the unity of the graduation ceremony at Arvada High
School. [Doc. 15-2]. Like the Ocansey court, this Court concludes that the unity purpose is a
legitimate pedagogical interest. See [Doc. 15-3 at 7].
Naomi stresses that the School District permits its graduates to wear sashes earned in
connection with honors or school-affiliated organizations, as well as leis and other items of
indigenous cultural expression. However, certain of these items are only permitted pursuant to a
state statute. See Colo. Rev. Stat. § 22-1-142. All others, the record reflects, are school-approved;
indeed, the school-approval norm is central to the Court’s conclusion that graduation regalia
constitutes school-sponsored speech. Even if that were not the case, the School District could
freely permit one sash and prohibit another, as a general matter, because “Hazelwood allows

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educators to make viewpoint-based decisions about school-sponsored speech.” Fleming, 298 F.3d
at 926. It is likewise immaterial to the pedagogical-concerns analysis that the School District’s
regalia policy is unwritten. See Corder, 566 F.3d at 1230.
To the extent that graduation regalia is school-sponsored speech, as the Court has found,
the School District is permitted to restrict that speech as it sees fit in the interest of the kind of
graduation it would like to hold. See Bear v. Fleming, 714 F. Supp. 2d 972, 988 (D.S.D. 2010) (“A
graduation proceeding is a theatrical production in a sense—the actors, director, and stage crew,
or rather the students, administrators, teachers, and staff members, hope to convey a message the
audience will understand and appreciate.”); see also Griffith v. Caney Valley Pub. Schs., 157 F.
Supp. 3d 1159, 1164 (N.D. Okla. 2016) (concluding that high school graduation “dress policy . . .
promotes unity, discipline, and respect for authority, and allows the school to reserve special
recognition for student achievement or participation in school-related activities”).

Under

Hazelwood, it is not the Court’s role to override the School District’s judgment as to the values
furthered by its graduation ceremony, subject the efficacy of the School District’s pursuit of those
values to heightened scrutiny, or interrogate every facet of the School District’s approach to
graduation attire to see if it passes muster. And even Naomi acknowledges the varied values that
are at issue. See [Doc. 3 at 15 (recognizing the School District’s “potential interests” in “promoting
unity, honoring tradition, and avoiding controversy” but arguing that they would not satisfy strict
scrutiny)]. The Court therefore respectfully agrees with the School District that graduation regalia,
just like graduation speeches, can be editorially restricted consistent with Hazelwood as part of the
presentation of graduates at a graduation ceremony. See Corder, 566 F.3d at 1229–30. Naomi’s
sash, which would become part of her regalia if worn over her robe at the graduation ceremony,
falls under that framework.

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Finally, this Court in no way diminishes the sincerity, value, or importance to Naomi of
expressing that she is “a 200 percenter—100% American and 100% Mexican.” [Doc. 1 at ¶ 44].
Although it “would be abdicating [its] judicial duty if [it] failed to investigate whether the
educational goal or pedagogical concern was pretextual,” a court will not otherwise “second-guess
the pedagogical wisdom or efficacy of an educator’s goal.” Axson-Flynn v. Johnson, 356 F.3d
1277, 1292–93 (10th Cir. 2004) (emphasis omitted). Here, Naomi does not allege that the School
District’s sash policy is pretextual, either as a general matter or as applied to her. Indeed, her
counsel conceded at oral argument that she is not alleging any racial animus on the part of the
School District. It is undisputed, for example, that the School District will permit Naomi to adorn
her mortar board with a Mexican flag. Thus, based on the record before it, the Court does not find
that any of the School District’s stated pedagogical concerns are pretextual.
Because the School District’s restriction on Naomi’s sash is reasonably related to legitimate
pedagogical concerns, the Court concludes that the restriction passes Hazelwood scrutiny and
Naomi has failed to carry her heavy burden of establishing that there is a strong likelihood of
success on the merits of her First Amendment claim.
B.

Counts II and III: State Law Claims

At the outset, it is unclear whether the Court would ultimately retain jurisdiction over
Naomi’s state law claims under Counts II and III in light of the conclusion above that Naomi has
not met her burden of establishing the likelihood of success as to her First Amendment claim under
Count I. See, e.g., Sandberg v. Englewood, 727 F. App’x 950, 965 (10th Cir. 2018) (“Our
conclusion that the district court correctly dismissed Sandberg’s § 1983 claims removes any basis
for federal jurisdiction in this case. Since the district court only had supplemental jurisdiction over
the Colorado Constitution claim, the dismissal of all federal causes of action means the federal

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court should decline the exercise of jurisdiction by dismissing the case without prejudice.”
(citations and internal quotation marks omitted)); Lancaster v. Indep. Sch. Dist. No. 5, 149 F.3d
1228, 1236 (10th Cir. 1998) (stating that once “the bases for federal subject matter jurisdiction
have been extinguished . . .[,] the district court may decline to exercise continuing [pendent] or
supplemental jurisdiction over plaintiff’s state claims”). Nevertheless, as explained below, the
Court finds that Naomi has not established she is likely to succeed on her claims under Counts II
or III.
1.

Count II: Violation of the Colorado Constitution

Under Count II, Naomi alleges that Defendants violated her right to free speech under
Article II, Section 10 of the Colorado Constitution. [Doc. 1 at ¶¶ 58–60]. In Arndt v. Koby, 309
F.3d 1247 (10th Cir. 2002), the Tenth Circuit held that a plaintiff could not pursue a claim for a
violation of the Colorado Constitution’s free speech provision because the First Amendment
covered the same conduct, and she could seek relief under § 1983 for a First Amendment violation.
Id. at 1255 (citing Bd. of Cnty. Comm’rs v. Sundheim, 926 P.2d 545, 553 (Colo. 1996) (en banc));
see also Sandberg v. Englewood, 727 F. App’x 950, 964 (10th Cir. 2018) (“As the district court
noted, Sandberg can only pursue a claim for a violation of Colo. Const. art. II, § 13 if that provision
is distinct from the Second Amendment.”); Sundheim, 926 P.2d at 553 (“While it may be
appropriate to recognize an implied state constitutional cause of action when there is no other
adequate remedy, we agree . . . that where other adequate remedies exist, no implied remedy is
necessary.”).
Naomi acknowledges that her claim under Count II is based on the same conduct
underlying her First Amendment claim under Count I. See, e.g., [Doc. 3 at 19 (“For the reasons
expressed above in Section III.A.1.a, Naomi’s sash constitutes private student speech that the

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District has improperly restricted under Article II, Section 10 of the Colorado Constitution—
consistent with the greater protections of that provision.”)]. Moreover, at the hearing on the instant
Motion, Naomi’s counsel conceded that her First Amendment claim under Count I provides an
adequate remedy for the relief that Naomi seeks with respect to her claim under Count II.
Accordingly, in light of the Court’s conclusion above that Naomi has not met her heavy
burden of establishing the likelihood of success as to her First Amendment claim under Count I,
this Court also finds that Naomi has not met her burden of establishing the likelihood of success
with respect to her claim under Count II.
2.

Count III: Violation of Colo. Rev. Stat. § 22-32-109(1)(ii)

The Court also finds that Naomi has not demonstrated a likelihood of success for her claim
under Count III alleging violation of Colo. Rev. Stat. § 22-32-109(1)(ii). The statute provides that
each school district’s board of education shall “adopt a policy . . . to ensure that the right of school
district employees and students to display reasonably the flag of the United States shall not be
infringed with respect to the display: (I) On an individual’s person; or (II) On an individual’s
personal property or property that is under the temporary control of an employee or a student,
including but not limited to a desk top or a locker[.]” Colo. Rev. Stat. § 22-32-109(1)(ii).
Notably, however, Naomi does not cite—and the Court’s independent research did not
reveal—any authority to support that a private right of action exists under the statute. See generally
[Doc. 1; Doc. 3]. The Colorado Supreme Court has explained that when a statute “is totally silent
on the matter of remedy,” then the court “must determine whether a private civil remedy reasonably
may be implied” by examining various factors. See Taxpayers for Pub. Educ. v. Douglas Cnty.
Sch. Dist., 351 P.3d 461, 467 (Colo. 2015). But Naomi does not substantively analyze and establish
that such a private right of action would accrue under Colo. Rev. Stat. § 22-32-109(1)(ii), see [Doc.

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3 at 20], and her counsel did not address Count III during oral argument. This Court is not
persuaded, based on the authority before it, that such a right exists. Thus, Naomi has not met her
burden to establish her likelihood of success in arguing (1) that a private right of action exists such
that she has standing to assert a claim under Colo. Rev. Stat. § 22-32-109(1)(ii), or (2) that her
claim under Count III would be likely to succeed. See [Doc. 3].
II.

Irreparable Harm and Remaining Factors
Having found no likelihood of success on the merits of any of Naomi’s claims, the Court

need not consider the remaining requirements for granting preliminary relief at great length. See
Abay v. Denver, 445 F. Supp. 3d 1286, 1291 (D. Colo. 2020) (citing Hobby Lobby Stores, Inc. v.
Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013)) (“In cases in which the deprivation of
constitutional rights is at issue, the likelihood of the success on the merits factor is determinative.”).
Regarding irreparable harm, Naomi correctly points out in her Motion that “loss of First
Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable
injury.” [Doc. 3 at 21 (quoting Verlo v. Martinez, 820 F.3d 1113, 1127 (10th Cir. 2016)]. As
explained above, however, the Court finds no likelihood of success on the merits of Naomi’s First
Amendment claim, and in turn, no basis for irreparable harm on that ground.
Naomi also argues that “[h]igh school graduation happens once” and if she “must choose
between losing her ability to express her culture and losing the opportunity to cross the graduation
stage and receive her diploma in front of her family and community, she will be irreparably
harmed.” [Id.]. In its Response, the School District takes the position that it is not preventing
Naomi from expressing her culture; rather, it is channeling Naomi’s expression of her culture onto
her mortar board. See [Doc. 13 at 13]. The School District’s mortar board policy expressly states
that “[i]t is appropriate” to decorate a cap with the “flag of a country as recognized by the . . .

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United Nations.” [Doc 3-1 at 7]. That policy would permit Naomi to reproduce the design of the
sash on her regalia. Further, the School District acknowledges that Naomi may wear the sash
before and after the graduation ceremony. [Doc. 13 at 13]. While Naomi may prefer to wear the
sash during the graduation ceremony, the Court respectfully agrees with the School District and
concludes that Naomi will not suffer irreparable injury by having to express her culture in a form
other than the sash.
Without a showing of irreparable harm, the court need not balance the harms or evaluate
the public interest in depth. See Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356
F.3d 1256, 1260 (10th Cir. 2004). The Court therefore respectfully concludes that, at this stage of
the proceedings, Plaintiff is unable to sufficiently demonstrate a right to the disfavored relief she
seeks.
CONCLUSION
For the reasons set forth herein, it is ORDERED that:
(1)

Plaintiff’s Emergency Motion for Temporary Restraining Order and Request to

Allow Out-of-State Counsel to Participate Virtually in a Hearing on this Motion [Doc. 3] is
GRANTED IN PART AND DENIED IN PART. The request for a temporary restraining order
is DENIED.

DATED: May 26, 2023

BY THE COURT:

_______________________
Nina Y. Wang
United States District Judge

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