Last week, the
United States Court of Appeals for the Sixth Circuit decided
Lowery v. Euverard. The court rejected constitutional claims brought by four former Tennessee high school football players against the school's coach and other school officials.
The players claimed their First Amendment rights were violated when they were dismissed from the team after circulating and signing a player petition declaring that they "hate[d]" Coach Euverard and did not want to play for him. The players were upset with several of Euverard' actions, including striking a player in the helmet, throwing away college recruiting letters addressed to disfavored players, using inappropriate language, and humiliating and degrading his players. The petition was supposed to be held until after the season, presumably to be submitted to the administration. But the coach found out about it, called the entire team into the locker room, and met individually with players to ask if they had signed the petition and who had started it circulating. The four players were kicked off the team when they refused to apologize for their expression; players who apologized were not kicked off the team.
The two-judge majority held that the players' speech in circulating the petition was not protected under the controlling rule of
Tinker v. Des Moines Indep. Cmty. Sch. Dist. (which provides that school officials can restrict student speech that is reasonably likely to materially and substantially interfere with the requirements of appropriate discipline in the operation of the school), thus there was no First Amendment violation in their dismissal. Under Tinker, . The third judge concurred in the judgment, finding that their was a constitutional violation, but that the coach and others were entitled to qualified immunity. There is some good discussion and commentary on the decision over at The Volokh Conspiracy.
Several things are notable about the majority opinion:
1) It is a very sport-centric decision. The court repeatedly talks about the need for athletic coaches (seemingly unique from other authority figures at the school) to lead their teams by maintaining order and discipline. Any speech that attacks or challenges the coach's authority undermines his ability to lead and the ability of the team to succeed on the field. All such critical speech thus becomes "disruptive." Similarly, there are several pages devoted to discussions of team unity and mutual respect between players and coaches and the necessity of unity and respect to success in sports (with citations to stories about the 2006 Detroit Tigers and the Florida Gators). Again, any such statements of dissatisfaction with the coach necessarily threaten that unity and thus are disruptive. Criticism of the coach risks dividing the team into camps--and such division makes it impossible for the team to succeed.
2) There is a suggestion that players who do not want to play for a particular coach have a "powerful incentive to give less than one hundred percent." The court quickly disavows any suggestion that this happened here, but it suggests that the possibility of such tanking, or the mere suspicion of it, would increase tension within the team.
3) The court begins the opinion by quoting a scene early in
Hoosiers (
link), where two players talk back to Coach Norman Dale during the first practice and Dale kicks both out of practice. One player later apologizes and is allowed back on the team. A coach must, the court argues, be able to discipline players who give him "lip" in this way.
4) The court spent a lot of time emphasizing the voluntary nature of participation in sports, pointing out that the students were not (and presumably could not be) suspended from school or denied an education; they only were prevented from participating in a voluntary extra-curricular. In other words, no one stopped them from speaking out or expressing their opinions, only from playing football, something they have no constitutional right to do.
5) In an interesting move, the court cited
Connick v. Myers, the leading Supreme Court precedent on employee speech, and analogized the school's ability to restrict student speech that undermines authority and the good functioning of voluntary school activities to the government's ability to restrict employee speech that undermines authority and good functioning of public offices. Both deal, the court said, with "the ability of the government to set restrictions on voluntary programs it administers." What is not clear is whether the court was imposing a "public concern" requirement (a cornerstone of employee-speech doctrine) onto the student-speech doctrine.
6) The court had to work very hard to distinguish decisions from other federal circuits that denied summary judgment for the defendants on First Amendment challenges by high-school athletes against their coaches. The court drew a distinction between "whistle-blowers"--student-athletes who spoke out about wrongdoing within the team, such as hazing incidents--and players simply challenging their coach simply because they "hate" him.
I think this is a pretty bad decision. Not so much because the court rejected the free-speech claims--that is the expected outcome in all student-speech cases nowadays. But I think the majority's reasoning is shaky. And, while the court clearly was trying to cabin the reach and impact of the decision, I am not sure it did so.
Some thoughts:
1) Sports are not different from other extra-curricular activities because all are voluntary. And the success of any such activities similarly depends on those in authority maintaining order and discipline, maintaining unity of purpose among members of the organization, and not having the group divided into competing "camps." So there is no analytical difference between a sports team and, say, the school newspaper (similarly voluntary and extra-curricular). The result should be the same when a football player seeking to have his coach removed because he does not want to play for him and the student editor of the school newspaper petitioning to have the paper's faculty adviser removed because he was doing a bad job of running the paper and the students did not like working with him.
2) The court draws a line between whistle-blowing players (whose statements are protected) from players giving a coach "some lip" in a face-to-face encounter (not protected). This case involves something between those poles--the players were trying to take steps to draw the administration's attention to the players' dissatisfaction with Coach Euverard's coaching and his treatment of them. This is more than the players giving the coach lip. is, in some sense, whistle-blowing: Who better than the players to bring to the administration's attention that the coach is doing a bad job and has "lost" the players because of his misconduct?
3) As long as we are trafficking in clips from Hoosiers to support legal analysis, I suggest that the chose the inappropriate scene--involving a player giving Coach Dale "some lip"--to illuminate this case. A better scene comes later in the movie, when Jimmy Chitwood, the team's star who was taking time off from basketball, walks into the town meeting at which the people have voted to remove Dale as coach. Chitwood announces that he is ready to start playing again, on one condition:
"I play, Coach stays. He goes, I go." The town leaders immediately call for a new vote, in which Dale is overwhelmingly retained. In other words, Chitwood spoke out on the matter of who should coach--exactly what the plaintiffs here did. The difference is, it worked for Chitwood simply because the powers-that-be agreed with what Chitwood wanted.
But the protection accorded to speech cannot depend on whether the speaker's argument carries the day. That is, it cannot be that a player is safe to criticize the coach if he can get the administration to back him, but he is subject to punishment if his arguments fail because the administration chooses to back the coach. The majority at one point states that this is what happened here. But that is a disturbing line.
4) Now, consider two counter-factuals off the Chitwood scene:
a) The town leaders stand by their dismissal of Dale, Chitwood decides to play anyway, and the new coach kicks him off the team because of his statement of support for Dale--which indirectly, could be said to undermine the new coach's authority and causes division within the team).
b) Chitwood comes into the meeting and tells the People to sack Dale as coach. But Dale is retained. He then kicks Chitwood off the team for urging his dismissal--which directly undermined his authority and caused division within the team.
In both of these situations, Chitwood clearly is being punished for his speech. But under
Lowery, he has not First Amendment right to make those statements, at least if he wants to play high-school basketball at the only place he is permitted to play it.
5) The unconstitutional conditions doctrine is largely dead. The ethos of the decision is that government can condition participation in voluntary activities on a waiver of constitutional rights.
At some level, rejecting such First Amendment claims is understandable as a policy matter. A coach must be able to decide, with pretty free discretion, who will be on the team and who will play where and when. And there perhaps is a risk that every player cut from a team or who is not playing will attempt to argue that the coach's decision was retaliation for the player's expression.
But there must be a way to avoid that slippery slope without eliminating any First Amendment protection for those who participate in "voluntary" scholastic activities (which, given the competitiveness of college admissions these days, are not truly "voluntary" anymore). Or without completely abandoning the idea that high-school students not only do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," they also do not shed them at the door of the locker room.
