TENNESSEE — Four student athletes who were kicked off theirhigh school football team after circulating a petition critical of their coach filed an appeal Friday forthe U.S. Supreme Court to hear their case.
A three-judge panel of the 6th U.S. Circuit Court of Appeals ruled in August 2007 that the players’First Amendment rights were not infringed upon because their efforts underminedthe coach’s authority, and because their only punishment was being removed from avoluntary extracurricular activity. The students were then denied a motion forfull-court review.
The students’ petition to the Supreme Court asks the justices to decidewhether the Court’s major student speech precedents “permit school officials to punish a student forhis viewpoint of his speech as long as the speech does not involve a matter of public concern.”
The main precedent governing independent student speech is Tinker v. DesMoines Independent Community School District, a 1969 case in which the Court ruled thatschools cannot censor student speech unless there is a reasonable forecast of “material andsubstantial disruption” to the school or unless the speech will invade the rights of others. The studentsargue circulating the petition did not disrupt the school or football practices and thatTinker specifically said a student’s freedom of speech extends to “the playing field.”
The students also argued that the 6th Circuit’s inclusion of a “publicconcern” test in addition to the Tinker standard “dramatically [restricts] First Amendmentprotections afforded public school students.”
This public concern test originates from Connick v. Myers, a 1983case in which the Supreme Court determined speech by government employees is protected by theFirst Amendment only if the speech is about a matter of public concern, not apersonal grievance.
The majority opinion of the 6th Circuit panel in Lowery states that”the key to understanding Connick and the instant case is that neither case is fundamentallyabout the right to express one’s opinion, but rather the ability of the government to set restrictions onvoluntary programs it administers.”
In a separate, but concurring, opinion, Judge Ronald Lee Gilman wrote thathe did not think the Connick public-concern test applied in this case.
“Given the facts of Morse, the Supreme Court could well have chosento add a public-concern requirement to the traditional Tinker analysis, but it didnot do so,” Gilman wrote. He concluded the athletes’ speech was protected, but that the school officialswere immune from liability because student athletes’ First Amendment rights were not clearlyestablished by existing precedents.
The Supreme Court concluded in the 2007 case Morse v. Frederick,commonly referred to as the “Bong Hits 4 Jesus” case, that student speech could be censored if itadvocated illegal drug use.
Linda J. Hamilton Mowles, attorney for Jefferson County High School and itsathletic officials, including Coach Marty Euverard, told the Student Press LawCenter in March she does not think the Supreme Court will hear the case.
“It’s a very slim chance … [The Supreme Court] has already addressed manyof these issues,” Mowles said.
In the fall of 2005, 18 of 37 members of the Jefferson County High Schoolfootball team signed a petition, which said, “I hate Coach Euvard [sic] and I don’t want to playfor him.”
The students said Euverard was abusive and he often “humiliated anddegraded players,” according to court documents.
When Euverard learned of the petition, he individually interrogated all ofthe team members, asking them if they had heard about the petition, if they had signed it andwho had asked them to sign it, according to court documents. Euverard eventually determined the”ringleaders” were Derrick Lowery, Jacob Giles, Joseph Dooley and Dillon Spurlock. Hedismissed the four from the team, and they filed suit in December 2005.
“If this decision is allowed to stand, students will be reluctant to act aswhistleblowers on any kind of wrongdoing by a coach or teacher — sexual abuse, physicalabuse, or harassment — lest they be punished for doing so,” the students’ Supreme Court petitionargues.