We previously reported on a lawsuit by a Native American group and individuals seeking to halt implementation of Colorado’s ban on Native American school mascots, claiming that the law unconstitutionally singled out Native Americans for adverse treatment as to mascots.In our post, we provided some background, Native American Lawsuit Challenges Colorado Ban On Native American “Mascots” As Discriminatory:
The banning of Native American (American Indian) depictions for sports teams gets a lot of press, most famously the Washington Redskins renaming themselves the Washington Football Team.There’s a side to this issue that I had not thought of, but is argued in a lawsuit just filed in Colorado. That when the government is involved in such name bans, it is discrimination against American Indians because it deprives them of the ability to have things named after them. It is, according to the argument, the worst form of cultural appropriation, more like cultural deprivation.In Colorado in 2021, legislation was passed banning the use of American Indian mascots, broadly defined. Now the law is being challenged in a lawsuit filed on November 2, 2021, on behalf of the Native American Guardians Association (NAGA) and individuals by the Mountain States Legal Foundation, which summarizes the case on its website:
Marez, et al. v. Polis, et al.
This is a civil-rights action, filed in the U.S. District Court for the District of Colorado, challenging the constitutionality of SB 21-116. SB 21-116 is a bill passed by the Colorado State legislature in 2021 which purports to prohibit the use of American Indian “mascots” by public schools and public institutions of higher education, as of June 1, 2022. Schools that don’t comply with the law face a $25,000 per month fine, for each month that the school continues to use a prohibited image or name after that date. The Native American Guardians Association and its members believe the law violates their First Amendment and Fourteenth Amendment rights, as well as Colorado Constitution’s Free Exercise Clause and Colorado Constitution’s Free Speech Clause, the Civil Rights Act, Title VI and Title IV.
On December 1, 2021, the federal district court denied a request for an emergency injunction, ruling that there was no emergency since the ban only became effective on Jun 1, 2022:
In their motion, the Plaintiffs ask this Court to “issue a preliminary injunction barring Defendants from taking any actions to enforce [SB 21-116].” ECF 4 p. 2. However, in the very first sentence of their motion, the Plaintiffs admit that “the deadline to change Native American icons and imagery covered by SB 21-116” is June 1, 2022. Id. There is no indication in any of the Plaintiffs’ briefing that the Defendants are currently enforcing SB 21-116 or that they intend to do so in the immediate future. The Plaintiffs are thus requesting this Court to issue an “emergency” order preliminarily enjoining action which is not being taken and which will not immediately be taken. The function and purpose of a “preliminary injunction” is to prevent irreparable injury pending an ultimate determination of the action. See Marine Cooks & Stewards, AFL v. Panama S. S. Co., 268 F.2d 935, 935 (9th Cir. 1959). The Plaintiffs here have not established that they will suffer any immediate injury pending the ultimate determination of this action because the statute at issue will not be enforced for another six months.1[1 Indeed, the Plaintiffs acknowledge in their motion that “it is possible that the Defendants will agree to a case scheduling order that largely resolves the issues in the case prior to June 1, 2022.” ECF 4 p. 20]The November 30, 2021 deadline on which the Plaintiffs rely to support this “emergency” request is not tied to the relief requested. The Plaintiffs request that the Court enjoin the Defendants from enforcing SB 21-116. November 30, 2021 is simply the date by which schools need notify the Building Excellent Schools Today (BEST) ofan intent to apply for funding to remove American Indian mascots. The November 30, 2021 deadline has no bearing whatsoever on the enforcement of the Act. The Plaintiffs argue that they will be harmed if the Court does not issue a preliminary injunction prior to November 30, 2021 because “a transition to a new school name or logo is expensive, and [] it will be next to impossible to return to such a name if relief is granted after June 1, 2022.” ECF 4 p. 19. Such speculative harm, however, cannot form the basis for a finding of irreparable injury. “Irreparable harm” means that the injury “must be both certain and great.” Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001). Further, the harm alleged would constitute harm to the schools, not to the Plaintiffs themselves.
Plaintiffs have filed a Notice of Appeal. The issue seems to be that the district court judge considered the November 30, 2021, deadline to be meaningless, but the plaintiffs filed a Declaration that schools need to make a decision by November 30, so the deadline is legally significant:
“Recently Arickaree School District R-2 received a letter from the Colorado Commission of Indian Affairs (the “CCIA Letter”). Notwithstanding the deadlines for compliance set forth in SB 21-116, the CCIA Letter demanded that “All districts and charter schools must notify BEST of their intent to apply by November 30, 2021.” (Emphasis added). ”
Plaintiffs’ counsel Scott Cousins provided the following statement in response to our request for comment:
“The District Court’s order would lead to absurd results. Schools might find out at the end of our case that Colorado’s law forcing them to change their name was unconstitutional all along. But by that point it will be far too late. We filed our appeal yesterday and expect to file a motion for injunction pending appeal, hopefully by end of next week.”
We will continued to follow the case
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