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Careful Criticizing the Coach:

Four varsity football players were dismissed from the Jefferson County (Tennessee) high school football team after organizing a petition against their coach. The students sued, alleging the punishment violated their First Amendment rights. The District Court denied the defendants' motion for summary judgment on the grounds of qualified immunity. Today, the U.S. Court of Appeals for the Sixth Circuit reversed the district court.

Of interest, the majority opinion, written by district court judge Zatkoff, sitting by designation and joined by Judge Siler, uses a scene from the movie Hoosiers to analyze the First Amendment question, even though the movie takes place before the Supreme Court's controlling decision in Tinker v. Des Moines Independent Community School District.

Assuming that Tinker was in force at the time of Hoosiers, would the players have a First Amendment claim against Coach Dale? That hypothetical case is not before the Court, but the instant case, although it contains different facts, presents a similar question: what is the proper balance between a student athlete's First Amendment rights and a coach's need to maintain order and discipline?
Applying Tinker, and recognizing that "students do not have a general constitutional right to participate in extracurricular athletics" and that "student athletes are subject to more restrictions than the student body at large," the majority concluded that the defendants were entitled to qualified immunity because their conduct in dismissing the players did not violate the First Amendment.
It was reasonable for Defendants to forecast that Plaintiffs' petition would undermine [the coach's] authority and sow disunity on the football team. Thus, there was no constitutional violation in Plaintiffs' dismissal from the team. Tinker does not require teachers to surrender control of the classroom to students, and it does not require coaches to surrender control of the team to players.
Judge Gilman wrote a separate opinion, concurring in the judgment, as he believed there was a constitutional violation, but that the defendants were nonetheless entitled to qualified immunity.
Contrary to the analysis in the lead opinion, I believe that the writing in question 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." See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969) ("In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."). The student-athletes in the present case, in my opinion, have thus properly asserted a constitutional violation.

But what I find most troubling about the lead opinion's analysis is that it significantly alters First Amendment jurisprudence by grafting the public-concern requirement of Connick v. Myers, 461 U.S. 138 (1983), onto the Tinker test, an approach never before taken in student-speech cases by either the Supreme Court or any other federal court of appeals to consider the issue. Moreover, the Supreme Court recently had an opportunity to overrule or otherwise alter Tinker, but explicitly declined to do so in a way that would affect the outcome of the present case. See Morse v. Frederick, 127 S. Ct. 2618, 2622 (2007) (holding that "a [high school] principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use"). I nonetheless concur in the judgment because I believe that the First Amendment right as applied to the particular circumstances in this case was not so clearly established at the time of the alleged violation as to deprive the defendants of qualified immunity.

Fco (www):
A petition is not disruptive. I'm assuming they were not engaging in disruptive activity while asking other students to sign the petition. If that was the case, the petition has nothing to do with the case. But a petition in itself does not interfere with the regular operation of the shcool.

Such a ruling tells students that if they see misconduct on the part of a teacher, expect unchallengeable retaliation from school authorities.
8.3.2007 2:17pm
Bill Poser (mail) (www):
This is an appalling decision. It appears that what really disrupted the team was the coach's conduct. The students may or may not have been correct in their complaints, but something is wrong if 18 members of a varsity football team, all of whom must have significant experience with team sports, want the coach removed. Moreover, the allegations are by no means petty. They include a major violation of the school's rules which very likely violates league rules (year-round practice), the criminal offence of assault and battery, and the claim that the coach discarded recruiting letters addressed to players he disliked, which is surely a gross violation of his duty as coach and depending on the circumstances may also be a criminal offence.

As described by the court, the way the school handled this was outrageous. They didn't even bother to look into the players' grievances but immediately went after the petitioners.

This has nothing to do with the legitimate maintenance of discipline in the school, which has to do with maintaining a secure environment in the school, letting classes run in an orderly manner, and getting students to do their work. This is all about maintaining coaches and gym teachers as nasty little dictators.
8.3.2007 2:53pm
Hans Bader (mail):
Two other federal appeals courts have rejected the public-concern test as a limit on student speech.

The Second Circuit rejected this limit on student speech in Garcia v. State University of New York Health Sciences Center, 280 F.3d 98, 106 (2d Cir. 2001).

The Ninth Circuit rejected this limit on student speech in Pinard v. Clatskanie School District (9th Cir. 2006).
8.3.2007 3:19pm
Hans Bader (mail):
Line the Second Circuit, the Ninth Circuit rejected the "public-concern" limit on student speech in Pinard v. Clatskanie School District, 467 F.3d 755, 765 (9th Cir. 2006).

Several other courts have similarly rejected the argument that students' speech must be on a matter of public concern to be protected. E.g., Garcia v. S.U.N.Y. Health Sciences Center, 280 F.3d 98, 106 (2d Cir. 2001); Qvyjt v. Lin, 953 F.Supp. 244, 247-48 (N.D. Ill. 1997).
8.3.2007 3:22pm
Hans Bader (mail):
Are student athletes more like employees than they are like ordinary students? So suggests the court's opinion in Lowery v. Euverard, in rejecting the student athletes' First Amendment claim.

I now see that the Lowery decision did NOT apply the public-concern limit on speech from public-employee speech jurisprudence, but rather OTHER axioms limiting public-employee speech rights, in order to reject the student-athletes' claims.

Interestingly, the Second Circuit refused to do that even in a case that involved graduate students who actually WERE also EMPLOYEES. Garcia v. S.U.N.Y. Health Sciences Center, 280 F.3d 98, 106 (2d Cir. 2001) (rejecting application of public-concern test to such students).

So there seems to be something of a circuit split as a result of the Lowery decision.
8.3.2007 3:31pm
Houston Lawyer:
I have no problem with this. I take the plaintiff's complaints at face value and have no doubt that the coach is a jerk. If the coach is so bad, quit the team. You have no obligation to play for a coach you don't like.

It's hard to feel sorry for guys who are undermining the coach, but don't have the guts to quit the team.
8.3.2007 3:48pm
spider:
"It's hard to feel sorry for guys who are undermining the coach, but don't have the guts to quit the team."

Well, it's not like there's a free market of football teams. If you want to play football, you play for the team of the high school where you've been assigned.
... Unless your family can afford to move homes, or place you in a private school.

So I don't see how quitting the team would be more honorable than trying to get the a----le coach
8.3.2007 4:13pm
spider:
removed.

[sorry for the incomplete post]
8.3.2007 4:14pm
Steve:
If the coach is so bad, quit the team.

Is that really your suggested remedy for a coach who throws out your recruiting letters? "Quit the team"?
8.3.2007 4:36pm
David M. Nieporent (www):
Such a ruling tells students that if they see misconduct on the part of a teacher, expect unchallengeable retaliation from school authorities.
Actually, it just tells them that they can't challenge it by claiming that it violates the United States Constitution. This case was not about whether the kids were right or wrong or whether the coach was right or wrong, or even whether he was criminal. This case was about whether a high school football coach violated the constitution by cutting some students because of their speech. The federal constitution isn't the remedy for every wrong.

(Incidentally, it wasn't because of the petition; everyone who signed the petition wasn't cut. It was because they were insubordinate afterwards and wouldn't apologize.)
8.3.2007 5:50pm
David M. Nieporent (www):
Is that really your suggested remedy for a coach who throws out your recruiting letters? "Quit the team"?
Report him to the school board. Report him to your parents and have them lobby the school board. File a lawsuit on some legitimate state law grounds. (Throwing out their letters may well be some sort of tortious interference.)
8.3.2007 5:52pm
Steve H (mail):
On the flip side of the coin, the Utah Supreme Court ruled the other day that a high school football coach is not a public official, that defamatory comments about the coach are not entitled to heightened constitutional protection, but that people who made allegedly defamatory statements about the coach have a conditional privilege.


http://www.utcourts.gov/opinions/supopin/O'Connor073107.pdf
8.3.2007 6:34pm
Bill Poser (mail) (www):

Report him to the school board.

Uh, isn't that what the petition was intended to do? The petition was intended to be delivered to some authority, though we aren't told, as far as I can see, which one.
8.3.2007 8:19pm
T. Gracchus (mail):
The Utah case was a defamation suit about a girl's basketball coach. The coach was fired for refusing to agree not to retaliate against players' whose family members had criticized him. He then sued the family members for disparaging him. The Court did reverse on public figure and public official immunities but remanded for further determinations. It also found that there may have been a conditional privilege to speak about the health and welfare of a family member. Which strikes me as a bit odd.
8.3.2007 8:21pm
David M. Nieporent (www):
Uh, isn't that what the petition was intended to do? The petition was intended to be delivered to some authority, though we aren't told, as far as I can see, which one.
It seems to me that a petition is, "This coach should be fired because all these people dislike him." I'm talking about reporting to the school board, "This coach is breaking the law." You don't really need a petition for that.
8.4.2007 12:31am