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Court backs Tenn. high school that kicked students off football team
Players had circulated petition criticizing coach
August 8, 2007
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.
By Tim
Hoffine, SPLC staff writer
© 2007 Student Press Law Center
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For More Information: Lowery v. Euverard, No. 06-6172,
2007 WL 2213215 (6th Cir. Aug. 3, 2007).
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