An appellate court has cleared the way for former Bullard football coach Don Arax’s defamation suit against School Board member Keshia Thomas and Fresno Unified School District to proceed.

Arax’s suit alleges he was defamed by Thomas when she accused him of being racist and using the “n-word.” Thomas made the comments during a discussion on an “Unfiltered” podcast hosted by GV Wire publisher Darius Assemi and in follow-up articles published by GV Wire in May 2022.

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They were made in response to a controversial incident in the Bullard High weight room in which a student was recorded wearing what appeared to be a Ku Klux Klan hood on his head.

The video was later posted to social media and went viral, sparking protests and walkouts by Bullard and Edison High School students and public condemnation on the part of Superintendent Bob Nelson, School Board members, parents, and other community members.

Court Rejects anti-SLAPP Motions

Thomas and the district had sought to have Arax’s suit dismissed under “anti-SLAPP” laws. Thomas and the district had contended that Arax’s defamation lawsuit was an effort to silence public discussion about the issue of racism in connection with the northwest Fresno high school.

The motions had been denied by Fresno County Superior Judge Kristi Kapetan in December 2022. The lower court decision was upheld in the Fifth Circuit Court of Appeal ruling released Wednesday.

Arax, Bullard’s football coach for more than 20 years, was released from the position last September. He now teaches PE at the school.

Arax, Thomas, and Arax’s attorney Brian Whelan, declined Thursday to comment on the appellate court’s ruling.

“Fresno Unified is evaluating our options and won’t be commenting on ongoing litigation,” district spokeswoman Nikki Henry said.

Protected Speech?

Thomas maintains that her comments were protected because she was acting in her official capacity as an elected officer of the school district. However, lawyers for the district argued that Thomas was not speaking on behalf of the board or district and that the district should not share in any potential liability.

The lower court also determined that Arax, a well-known and longtime football coach, is neither a public figure nor a limited public figure and does not have to prove Thomas or the school district acted with malice in the alleged defamation.

Arax’s suit maintains that Thomas knowingly lied when she said he used racist language in front of her son. The suit claims Thomas was angry after Arax’s brother, Mark, led lobbying efforts to rename a northwest Fresno school.

Mark Arax and others had produced evidence of racism by early Fresno area developer J.C. Forkner and suggested renaming the school for Fresno native H. Roger Tatarian, a well-known newsman and educator. The School Board approved renaming the school for Tatarian in October 2021.

Thomas reportedly also was angry at Don Arax after her youngest son was disciplined, although Arax denied knowing at the time that the student being disciplined was her son.

A case management conference is scheduled for Feb. 28.

5th Circuit Court of Appeal Ruling