Lowery v. Euverard, No. 06-6172 (6th Cir. Aug. 3, 2007)
The U.S. Court of Appeals for the Sixth Circuit (MI, OH, KY TN) has ruled that the head varsity football coach did not violate the free speech rights of team members when the head coach dismissed them from the team after learning the players had circulated a petition denouncing the head coach and refused to apologize for signing it. Four members of the Jefferson County High School (JCHS) varsity football team circulated a petition during the season stating: "I hate Coach Euvard [sic] and I don’t want to play for him." When Coach Euverard learned of the petition he dismissed its authors from the team. The four players filed suit in a Tennessee federal district court against the coach, his staff, and the Jefferson County Board of Education, alleging that the coach and his staff had violated their free speech rights by dismissing them from the team for signing and circulating the petition. The district court denied the defendants’ motion for summary judgment based on qualified immunity because there was a disputed issue of fact regarding whether the petition disrupted the team.
The Sixth Circuit’s three-judge panel reversed the lower court’s denial of summary judgment. While all three judges agreed that the speech at issue was controlled by Tinker, two of the judges concluded that the coach had reasonably forecasted that the petition would be disruptive. The third judge, concurring in the judgment, concluded that the petition was protected speech and that the coach had violated the students’ free speech rights by dismissing them from the team. However, he would have dismissed the players’ claims on the ground the defendants were entitled to qualified immunity.
The majority began by noting that students face curtailment of their free speech rights in school, and the U.S. Supreme Court held in Vernonia that student athletes are subject to greater restrictions than the student body at large. It noted that while discussion and debate are essential to learning process in the classroom, coaches seldom use those tools to accomplish their mission of building a winning team. Given the different roles of teachers and coaches, the court stated that in order to identify the legal issue in the case it must first acknowledge that the role of federal courts is not to overturn the decisions of school administrators because the courts view the decision as lacking wisdom or compassion. The court rejected the players’ suggestion that the issue was whether it is permissible for school officials to engage in viewpoint discrimination. Noting that the case was not primarily about the players’ right to express their opinions, the court framed the issue as whether they have a right to continue as members of the team after circulating a petition that called for the coach’s dismissal.
Applying Tinker, the court found there was no issue of material fact regarding whether it was reasonable for the defendants to forecast a substantial disruption. A team member and the assistant coach testified that a group of players saying they hated the coach would harm team unity and could break a team apart.
Lastly, the court found its conclusion was supported by the "analogous reasoning of the Supreme Court in Connick v. Myers, 461 U.S. 138 (1983)." While acknowledging that Connick was decided in the context of government employment and speech cases involving public employees are generally inapplicable to student speech cases, it emphasized that because participation in athletics is not a constitutional right and student-athletes are subject to greater restrictions than the general student body there are greater similarities to government employees. It found that just as governmental actions are subject to a lower level of First Amendment scrutiny when the government is acting as a proprietor managing its internal operations, so to coaches enjoy greater authority to restrict the speech of students who voluntarily "go out" for a team.
The concurring judge would have found that the players had engaged in protected speech and that the coach violated the speech rights. He also took exception with the majority’s application of Connick stating: "I see no justification for grafting this requirement onto Tinker in the absence of Supreme Court caselaw instructing us to do so. Tinker has been in force for several decades now, and the Supreme Court’s recent holding in Morse does nothing to undercut its application to the facts of the present case." However, he would have dismissed the players’ claims on the ground of qualified immunity because "[t]here is no caselaw in this circuit, however, applying Tinker to student-athletes and defining the contours of their First Amendment rights."
Lowery v. Euverard, No. 06-6172 (6th Cir. Aug. 3, 2007)
[Full opinion]