Update, 12/2/21: Judge Regina Rodriguez, late Wednesday, denied the request for an injunction from the plaintiffs. Attorney William Trachman told Colorado Politics Thursday they intend to appeal either Thursday or Friday, and to seek a motion for an injunction pending appeal with the 10th Circuit Court of Appeals.

The federal lawsuit seeking to block implementation of recently passed state legislation banning the use of Native American mascots in almost all Colorado public schools may be nearing a decision.

Attorney William Trachman of the conservative Mountain States Legal Foundation told Colorado Politics that Judge Regina Rodriguez of the U.S. District Court for Colorado ruled on Monday she would not hold oral arguments on the lawsuit, indicating she can decide it based on the pleadings by the parties.

The plaintiffs – which include the Native American Guardians Association, as well as students and alumni from two of the Colorado high schools with disallowed Native American mascots – twice requested oral arguments.

Trachman said he views Rodriguez’s decision not to hold oral arguments “as a positive sign that the judge fully comprehends and has digested our arguments without the need for us to appear before her. Our papers are clear. They make arguments that are understandable and she’ll be looking at the merits.”

The lawsuit stems from the General Assembly’s passage of Senate Bill 116, which requires all but two Colorado public schools to end their use of American Indian mascots and nicknames no later than June 1. Those that refuse may face a $25,000 per month fine.

The plaintiffs filed for an emergency injunction on Nov. 5 against the state to block the law’s implementation. That request sought a ruling prior to a Nov. 30 grant deadline for schools to notify the Colorado Department of Education that they will need financial help. The grants, which tap the Building Excellent Schools Together fund, would help pay for the costs of a school replacing sports uniforms or other mascot-bearing items. Both the Yuma school district and Lamar High School estimated the costs to replace mascot-bearing items at more than $200,000 each.

However, the state’s Nov. 23 brief indicated the Nov. 30 deadline is not really a deadline that the court has to take into consideration.

“(T)hat deadline affects only public schools, none of which are plaintiffs. The deadline creates neither an exigency nor the risk of irreparable injury to Plaintiffs – it is for administrative convenience only and does not legally bind schools or alter the February 2022 deadline for schools to submit grant applications,” the state’s brief said.

The only district that publicly considered joining the lawsuit, Lamar, ultimately declined. The district cited the June 1, 2022 deadline for ending its use of the “savages” mascot, once known as Chief Ugh-Lee.

The lawsuit challenges the constitutionality of SB 116 on First and Fourteenth Amendment grounds.

The Nov. 23 state response to the lawsuit called the plaintiffs’ claims “simply implausible.”

“(Colorado) undoubtedly may control the speech of its subordinate political subdivisions – including school districts and the boards that oversee them … SB116 in no way regulates private speech and therefore the government speech doctrine forecloses Plaintiffs’ First and Fourteenth Amendment claims,” the state brief said. “Indeed, no court has ever held that a statute that classifies certain school mascots for differential treatment violates the Equal Protection Clause; that the First Amendment entitles individuals to a ‘considered response’ when they request an American Indian mascot; or that a statute can create a hostile environment in every public school across a state.”

The plaintiffs, in a response filed on Nov. 26, said: “This court should reject Colorado’s arguments based on the purported offensiveness of images and icons covered by SB 21-116 (the Act). To be clear, the Act isn’t carefully drawn to ban all race-based caricatures, historically inaccurate portrayals of cultures, or racially hostile environments based on a school’s images. That would be one thing. Instead, however, the Act singles out a specific race for differential treatment, puts Plaintiffs in a distinct and disadvantageous political process as compared to individuals of other races, confuses both the Plaintiffs and the schools that they attempt to petition, and forces several plaintiffs to watch as their culture’s names and imagery are stripped from their schools.”

According to the Colorado Commission on Indian Affairs, 28 public schools in Colorado still use American Indian mascots. Two – Arapahoe High School in Centennial and the Strasburg School District – will be allowed to keep their Native American mascots under SB 116, as those mascots were designed through agreements with federally-recognized tribes. The law also allows tribal schools to use Native American mascots.