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Saturday, August 04, 2007
Criticize the Coach At Your Own Risk or What Norman Dale Can Teach Us About the First Amendment

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.


Sports are not different from other extra-curricular activities because all are voluntary ... So there is no analytical difference between a sports team and, say, the school newspaper (similarly voluntary and extra-curricular).

One big difference should be obvious. Some members of a high school football team may be hoping, realistically or otherwise, to get college scholarships. There aren't any such direct benefits to being on the school newspaper.

There's also another major benefit to playing high school football - your status as an athlete often will make it easier to get girls to go out with you. Being on the school newspaper has, if anything, the opposite effect!

Anonymous Peter -- 8/06/2007 3:40 PM  

Excellent point about working on the newspaper and getting girls to go out with you.

But any differences as to the benefits to college futures is one of degree. Some editors of the newspaper "may be hoping, realistically or otherwise," that participation on the school newspaper will impress college admissions committees, especially those students who wish to major in journalism or who want to pursue some sort of writing-related field of study.

Moreover, conceding the point that football is different in this respect, which way should it cut in terms of students' freedom to criticize the faculty members in charge? One of the things Euverard allegedly did was to throw away college recruiting materials intended for "disfavored" players. If football is different because of that college connection, perhaps there should be *greater* freedom to criticize.

Blogger Howard Wasserman -- 8/06/2007 4:34 PM  

Football players should have greater freedom to criticize precisely because of the scholarship issue. Throwing a player off his high school football team can do serious damage to his entire future, if it means that he's not going to get the college scholarship.

As I understand it, participation in extracurricular activites such as school newspapers has only a very limited effect on college admissions decisions.

Anonymous Peter -- 8/06/2007 4:42 PM  

Howard, good post.

I have few comments,

#1. I havent had the chance to read the case just yet, but do we know that the allegations of the players are true, or even supported by any facts at all? I remember from my days of HS football that the coach wasn't the most popular person with every player on the team, but you did what you were told to do, and most of the times this led to improvement. Im simply curious if the players were complaining because they didnt like the coach or because they were actually misstreated.

#2 I support the free speach of students and student athletes, but as you point out, in athletics, you have to draw a point somewhere. Somewhat in line with this ruling, I would say that this line should be drawn for the safety of the student-athletes. An example of this would be punishing a player from having to get a water break during two-a-days on a 100 degree august day. Clearly, recent history has taught us how dangerous heat exhaustion can be (Five football players ages 11 to 17 died of heat stroke in 2006 due to heat stress). Voicing concern about that issue would then be safety related thus protected from punishment. Where would you draw the line?

#3. The allegation that the coach ignored recruitment letters does not bother me too much. It is within the discretion of the coach to choose which player he wishes to assist in recruiting matters. The facts you posted suggests that some players were not favored and therefore not assisted in recruitment, i see nothing wrong with this as a general practice. If a coach feels that a player has a bad attitude towards athourity, it may be a bad idea to recomend this player to a college coach, as this player will represent his HS at the college level. Without proof that the coach refused to assist a player for purely discriminatory reasons (race, national origin, etc.) I see no problem with leaving this decision in the hands of the coach.

Blogger Jimmy H -- 8/06/2007 5:04 PM  

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.

I have to say that the kids were barking at the wrong tree to solve their problems.

1. If a player was struck by the coach as alleged and is under 18, that is best addressed through that state's child welfare department and under 18 or not a police issue in addition to any civil tort.
2. Throwing away recruitment letters seems to dance close to a FERPA violation by destroying what could be deemed an educational record. Probably doesn't get there but its close enough that it'd make me skittish.
3. The language issue might be really interesting because of the potential abuse and harassment issues as well as creating a hostile environment.

I agree with the court in that it is a voluntary activity and there is no right to play football but that analysis is better reserved for academic eligibility and conduct issues such as arrests, bullying, disruptive behavior. Here we have a state actor (the coach) imposing disciplinary action in order to chill speech that could reveal actions that violate both civil and criminal law.

As a matter of public policy that should be highly protected speech.

Blogger Mark -- 8/06/2007 5:35 PM  


The Family Education Rights and Privacy Act of 1974, commonly known as FERPA, is a federal law that protects the privacy of student education records.

and even if we look beyond the Act's purpose, privacy protection, private notes of individual staff or faculty (NOT kept in student advising folders) fall outside FERPA.

However, I do agree with you on point #1, if a player was indeed struck by the coach, then the player should have pursued other avenues (although i suspect we are talking about the classic banging of the whistle against the helmet, probably not enough to trigger a claim with the health and wellfare department.)

Blogger Jimmy H -- 8/06/2007 6:10 PM  

To Jimmy H's Point # 3:

If a coach believes a player has a bad attitude or would not be a good player to recruit, he will (and should) have the opportunity to make his views known to the recruiters. College coaches seek out and value the high-school coach's opinions about players. I am fine with that, for the most part, although I think it is an awesome power that can be abused. But I think the high school coach affirmatively depriving a player of the basic information that College X might be interested in him is very different and an abuse of his authority.

But don't take my word for it. In keeping with the Sixth Circuit's "sports-movies-illustrate-legal-principle" motif: See "All the Right Moves" (1983, Pre-Crazy Tom Cruise, in a very underrated sports movie). The coach kicks Cruise off the team for talking back (after a crushing loss to the school's arch-rival), then tells a college coach that he should not recruit Cruise because "he has an attitude problem." Importantly (since this is Hollywood), the coach ultimately realizes he was wrong in what he did and, after he gets a job as a college assistant, offers Cruise a scholarship to play for him.

Blogger Howard Wasserman -- 8/06/2007 11:30 PM  

Jimmy, FERPA also includes the right to inspect educational records. While I think it is stretch to call a recruiting letter an education record because there is almost certainly no duty to maintain that record, it would likely be part of a kitchen sink argument.

Blogger Mark -- 8/07/2007 2:37 PM  


My comment #3 was regarding communication between HS coach and college coach. From what I experienced, and I also talked with my old college roomate today (his brother was recruited and signed with FSU this year), the initial communication between college recruiters and the student athlete was communicated both to the coach AND the athlete. I agree with you that if a coach gets a letter that is supposed to go to the student, letting him or her know that a school is interested, then yes, the coach does have a responsibility to deliver such communication. What I was talking about was the discretion of the coach to further assist a player in the recruitment process (beyond initial contact or letter of interest). Such assistance I still believe is up to the discretion of the coach.


I agree that the argument would (and probably should) be part of a kitchen sink argument. Perhaps we are talking about different records here? If we are talking about a letter of interest sent to the coach but addressed to the player, then your argument is much stronger. However, if we are talking about a college coach requesting the HS coach's asisstance in recruiting then its a completely different ballgame. that kind of information is excluded under FERPA as private notes of individual staff or faculty not kept in student advising folders.

Blogger Jimmy H -- 8/07/2007 8:19 PM  

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