Court backs Tenn. high school that kicked students off football team


Players had circulated petition criticizing coach





TENNESSEE -- The First Amendment rights of four high school football players were not infringed when they were kicked off the team after petitioning against the coach, a three-judge panel of the 6th U.S. Circuit Court of Appeals ruled Friday.

The Jefferson County High School athletes circulated a petition among their fellow players to pressure the school to replace coach Marty Euverard. The players intended to deliver the petition to school principal Dale Schneitman at the end of the season.

Among the students' grievances were that Euverard had "struck a player in the helmet, threw away college recruiting letters to disfavored players, humiliated and degraded players, used inappropriate language and required a year-round conditioning program in violation of high-school rules," the court noted.

"This case is not primarily about Plaintiffs' right to express their opinions, but rather their alleged right to belong to the Jefferson County football team on their own terms," the court said. "The specific question presented by this case is whether Plaintiffs had a right to remain on the football team after participating in a petition that stated, 'I hate Coach Euvard [sic] and I don't want to play for him.'"

Michael Kelley, one of the students' attorneys, called the decision a "travesty" and said the students will be applying for a rehearing before the full appellate court.

The panel said although the U.S. Supreme Court's Tinker decision protects some student speech, the football program was a voluntary activity, the goal of which was to win football games. In that context, the court said, the students' right to petition is narrowed because it could undermine the coach's authority to coach.

Tinker v. Des Moines Independent Community School District was a 1969 U.S. Supreme Court ruling that established school administrators could restrict student speech if they can demonstrate a substantial risk of material disruption to educational activities or invasion of the rights of others.

"[Coaches] have the prerogative to open up the question of their authority if they so choose. But this does not mean that the players have a corresponding right to unilaterally undertake a referendum on the coach's authority," the appellate court said in the Jefferson County case. "Creating the latter would be tantamount to establishing a bottom-up authority structure for high school athletics."

The court emphasized that the school only removed players from a voluntary, school-controlled activity and did not otherwise punish them.

"Plaintiffs' regular education has not been impeded, and, significantly, they are free to continue their campaign to have Euverard fired," the court said. "What they are not free to do is continue to play football for him while actively working to undermine his authority."

Players who signed the petition but apologized to Eurverard and told him they wanted to play for him were allowed to remain on the team, the court noted.

"In my view, the lead opinion completely ignores well established precedent in Tinker and in fact creates a new and lower standard for the free-speech rights of student athletes," Kelley said. He also said ruling student athletes' speech rights are more limited except when speaking about matters of public concern is a "radical departure" from previous court decisions, including some in the 6th Circuit.

Gene Policinski, executive director and vice president of the First Amendment Center, an advocacy group based in Nashville, Tenn., called the decision "fairly limited" and said it was not as much of a free speech issue for the students as a "traditional sublimation of free speech rights when you participate as an athlete."

Judges disagree over First Amendment question

All three judges on the panel agreed that the case should be dismissed, but they split over the reasons why. Two judges found that there was no First Amendment violation. But Judge Ronald Gilman strongly disputed that conclusion.

"I believe that the [players'] writing ... constitutes protected speech under Tinker and that the defendants have failed to carry their burden of 'demonstrat[ing] any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities'," Gilman wrote.

Gilman said the lead opinion misapplied precedent and was wrong to apply another precedent -- which addressed the government's right to discipline its employees -- to the student athletes' case. He said neither the U.S. Supreme Court nor any federal appeals court has ever used such an analogy in a student-speech case.

Gilman pointed to the U.S. Supreme Court's refusal to reduce Tinker's general importance in Morse v. Frederick, a recent case in which the Court carved out a narrow exception to Tinker that allows schools to punish student speech that advocates illegal drug use.

"Vague notions of 'teamwork' and 'unity' are simply not compelling school interests in the way that the prevention of illegal drug use is," Gilman said. "Nothing in Morse suggests that anything other than a standard Tinker analysis is appropriate in the present case, and Justice Alito's concurrence explicitly states otherwise."

Still, Gilman argued administrators could not be held financially liable because the students' rights were not clearly established when the incident occurred, and the plaintiffs "presented nothing to overcome their burden of showing that Euverard should be denied qualified immunity."

Kelley said while he respectfully disagreed with Gilman's position on the administrators' liability, he did emphasize the importance of the "strong language he [used] with regard to the free-speech rights of students."

"The tragedy of [this] decision is that until reversed by either the Sixth Circuit en banc or by the Supreme Court, the free-speech rights of every student athlete in Tennessee, Kentucky, Ohio and Michigan are severely restricted, and I think that's truly a travesty and needs to be attacked as vigorously as possible," Kelley said.

For More Information:

Lowery v. Euverard, No. 06-6172, 2007 WL 2213215 (6th Cir. Aug. 3, 2007).


Jefferson County High School, news, Tennessee