After another attempt by Fresno Unified Trustee/Fresno City Council candidate Keshia Thomas to keep a defamation lawsuit by former Bullard High football coach Don Arax from going to trial, a judge threw out her argument that her comments against him were protected.

What’s more, Fresno County Superior Court Judge Kristi Culver Kapetan ruled that deposition testimony from Thomas in which she denied ever claiming Arax had called her son the n-word could be used as new evidence.

Fresno Unified’s attempt to keep the case from going to trial comes as Arax’s attorney, Brian Whelan of Fresno, filed a motion to hamstring the defense by using Thomas’ own words against her.

“Can Fresno Unified School District carry its burden of proof on the affirmative defenses of truth and privilege when the only person who ever purportedly possessed knowledge of the underlying facts, Trustee Keshia Thomas, has repeatedly abandoned, contradicted, and ultimately denied the factual assertions upon which those defenses depend? It cannot,” Whelan told the court.

The case could go to trial as early as December. Fresno Unified declined to comment because the case involves pending litigation. Whelan didn’t respond to a request for comment before publication of this story.

Warning: This video created by attorney Brian Whelan obtained by GV Wire contains language not suitable for all audiences.

How Did We Get Here?

In 2022, Thomas went on the “Unfiltered” podcast hosted by GV Wire Publisher Darius Assemi to talk about a video showing a student in the Bullard High School weight room wearing what many people perceived to be a KKK hood.

On that podcast, Thomas said that longtime coach Arax had called her son “n—-.”

The accusation by Thomas came after previous vitriol between the two about the renaming of Forkner Elementary to Roger Tatarian Elementary, court documents state.

Court documents also show that Arax in 2021, as a mandated reporter, told the Bullard vice principal that one of Thomas’ sons had “inappropriately patted a female student on the rear end at school.”

“As I perceived it, this reignited and fueled Ms. Thomas’ animosity towards me and directly towards me now,” Arax said in a deposition.

Arax said later he did not know that student was Thomas’ son.

Shortly after Thomas’ 2022 accusation, Arax was removed as head coach. After that, Arax left the district to work as a teacher and coach at Central Valley Christian, but not before filing a defamation lawsuit against Thomas.

In 2025, GV Wire first reported a deposition by Thomas where she repeatedly denied ever saying Arax called her son the n-word.

“I never said he called my son the n-word,” Thomas said under oath.

Thomas is running against State Assemblymember Joaquin Arambula for Fresno City Council District 3. With her campaign for city council, she cannot run for school board reelection this year.

A Ruling for Whelan’s Motion Would Hamstring Thomas’ Defense

If Thomas can prove that Arax had called her son the n-word or that Thomas’ statements count as “qualified privilege,” she and the district might strengthen their bid for dismissal.

Courts protect “privileged” speech to encourage “open and honest communication,” even if statements are defamatory, according to Buckingham, Doolittle & Burroughs legal theory.

That goes away if an attorney can demonstrate malice.

Whelan’s motion for summary judgment would keep Thomas and the district from arguing either of those defenses before a jury.

“Fresno Unified cannot satisfy either burden because its defenses depend entirely upon the accusation made by Trustee Keshia Thomas, and Thomas ultimately admitted under oath that the event underlying that accusation never occurred,” Whelan wrote in his motion.

Whelan argued that the district’s defense relies on Thomas’ integrity, which cannot be relied upon.

On top of the reversal in the 2025 deposition, Thomas previously tried to walk back claims in an October 2022 legal statement, saying her son had told her Arax’s use of the n-word was broadly applied to all Black players.

“These are not minor inconsistencies,” Whelan wrote in his motion. “They are wholesale reversals of the central factual allegations upon which Ms. Thomas seeks to rely.”

Facts in Case Are Triable: Judge

Thomas’ motion largely claimed that Arax is a public figure, thus he is not entitled to the same defenses as an average person. If the court determines that Arax is a public figure, his attorney faces the additional challenge of proving malice.

Culver Kapetan did not make a determination of whether Arax could be considered a public figure, but said that regardless of whether he is or isn’t, the facts in the case are triable.

“The appellate court determined that the evidence before it presented triable issues of fact on the question of malice, therefore, it had no need to resolve the public figure issue,” the judge’s ruling stated.

“If he is treated as a private figure, the actual malice standard does not apply,” Culver Kapetan’s ruling continued. “If Arax is treated as a limited public figure, overwhelming evidence creates triable issues of fact that preclude summary judgment.”