Barkeep49
08-13-2007, 05:20 PM
From hxxp://sports-law.blogspot.com/
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.
My feelings on this go both ways. On the one hand, I think that the coach has a right to kick people off the team who are spreading discontent. On the other hand, collecting a petition outlining grievances seems like a pretty legitimate thing to do.
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.
My feelings on this go both ways. On the one hand, I think that the coach has a right to kick people off the team who are spreading discontent. On the other hand, collecting a petition outlining grievances seems like a pretty legitimate thing to do.