Abstract
The resurgence of political activism by student-athletes raises the specter of increased constitutional challenges to public university regulations on student-athlete speech. This article explores the special regulatory environment situating student-athletes and gleans the First Amendment values underpinning cases where student-athletes challenge institutional regulations on their freedom of expression. Analysis of the legal discourse suggests that courts are more likely to apply increased scrutiny to university officials’ attempts to regulate expression on public issues versus speech that address personal or private matters. This article ends with some suggestions for practitioners and scholars to consider when evaluating regulations on student-athlete speech.
During a February 2021 game against the University of Tennessee at Chattanooga, student-athletes on the East Tennessee State University basketball team took a knee during the playing of the national anthem to protest social injustice. Soon after, 27 state lawmakers appealed to the state’s public universities to adopt policies that would prohibit “any such actions moving forward” (Hill, 2021). Although no state has yet to officially prohibit such actions, the specter of such policies remains, and the past year has witnessed numerous symbolic acts of protest by student-athletes in numbers rarely seen in recent memory. In August 2020, several Pacific-12 football players from universities including the University of California, Los Angeles (UCLA), Cal-Berkeley, and Washington, using the hashtag #WeAreUnited, threatened to boycott sporting activities and games if the conference did not meet the demands for racial justice, health and safety protocols related to coronavirus disease 2019 (COVID-19), and greater economic freedom (Giambalvo et al., 2020). A few months earlier, collegiate-athletes at the University of Texas announced that they would boycott recruiting or donor-related activities if the university would not rename campus buildings and remove the school’s alma mater due to their racist history (Kercheval, 2020).
As symbolic acts of protest such as kneeling and voluntary abstention (or threats thereof) from sporting activities have become more commonplace across campuses nationwide, it is important to remember that the practice of dissent is part and parcel to our free speech tradition. As Steven Shiffrin (1999) noted, “the dissenters—those who attack existing customs, habits, traditions, and authorities” are exercising a special First Amendment value (p. 10). Student-athletes are using such acts of protest to express dissatisfaction with the policies of their respective institutions and government—the type of expression that the Supreme Court declared is “situated at the core of our First Amendment values” (Texas v. Johnson, 1989, p. 411). Throughout our nation’s history, dissent in the form of disruptive protest tactics has been effectively utilized as a means of attaining justice and can prove influential in advancing social change when conventional political processes stagnate (Lovell, 2009). In spite of the fact that student-athlete protests in solidarity with the Black Lives Matter (BLM) movement have become commonplace nationwide, large segments of the public continue to view the movement and related symbolic acts of protest as disrespect toward the U.S. flag, military, police, or the country itself (Stratmoen et al., 2019). Dramatized coverage of protests is often favored over the articulation of the issues or motivations behind the dissent and, as Stamps and Mastro (2020) point out, news media’s tendency to overemphasize conflict when covering political protests serve to delegitimize dissenters and provoke group-based emotional responses. Student-athletes however, occupy a unique and very public position on college campuses: Their symbolic acts of protest on the field or through boycotts are likely to garner extensive media attention and, because they tend to involve nonviolent dissent, their motivations behind such acts are more likely to be publicized. Yet this resurgence of political activism raises the specter of increased constitutional challenges to institutional regulations on student-athlete speech, including the regulation or punishment of political protest under the guise of “disruption” to school activities or violations of rules set by the institution, athletic department, or coaches.
Scholarship on the speech rights of collegiate-athletes has historically been sparse, but early scholarship examined the scope of authority by coaches within an administrative hierarchy to promulgate rules and regulations (Parker, 1970), or argued that the student speech doctrine under the secondary school framework should apply with equal force to collegiate-athletes’ speech (McGahey, 1977). Other scholars have explored the practice of public university locker room prayers, and student-athletes’ First Amendment right to be free from religious compulsion (Fried & Bradley, 1994). With the advancement of digital communication technologies, a large body of research emerged to address the nexus of new media and the individual rights of student-athletes, including the constitutionality of university restrictions placed on student-athletes’ use of social media or their right to speak to news media (Behrmann, 2018; LoMonte, 2014; LoMonte & Hamrick, 2020; Penrose, 2014). More recently, one legal study explored the regulation of game-time anthem protests through the lens of traditional categorical approaches, before offering a proportional review approach to student-athlete speech (Maye, 2019). However, previous scholarship on student-athlete speech rarely invoke theories of freedom of expression or address questions regarding First Amendment values tied to collegiate-athlete dissent and their right to self-expression. This work attempts to fill this gap by identifying the First Amendment values underpinning the existing court decisions tied to the speech of student-athletes to assess to what extent does (and should) the First Amendment shield student-athletes’ right to engage in public discourse and the shaping of public opinion?
In the absence of Supreme Court guidance, the identification of First Amendment values from student-athlete speech doctrine is critical in informing the development of communication law and student speech policy within First Amendment jurisprudence. As Edward Carter (2017) pointed out, mass communication law research that analyzes First Amendment values has the potential to make a valuable contribution to the development of theory and the law. This work strengthens mass communication law scholarship by surveying legal doctrine to advance scholarly discussion of First Amendment values in the student speech context; it also offers courts, administrators, and mass communication scholars some ideas toward an analytical approach to collegiate-athlete speech that is informed by core First Amendment values, the purpose of higher education, and the extracurricular nature of college athletics. Although the recent surge of student-athlete activism has involved students at both public and private institutions, the focus of this inquiry centers on the speech rights of student-athletes at public institutions, which are state agencies and where university officials and coaches—acting in their capacity as public employees—are also agents of the state and are constitutionally subject to the limitations of the First Amendment under the state action doctrine. A public university “without question is a state actor,” and student-athletes must therefore prove that their speech was regulated by university officials acting under color of state law (N.C.A.A. v. Tarkanian, 1988, p. 192). The regulation of speech by private actors, including private universities, does not constitute governmental or state action, “no matter how discriminatory or wrong” (Sutton v. Providence St. Joseph Med. Ctr., 1999, p. 835).
This article begins with a review of the special regulatory environment that student-athletes are subject to, including common speech restrictions in place for students who participate in intercollegiate athletics. It then offers a modest review of the student speech doctrine in the university context, before employing a doctrinal analysis to examine case law post-Tinker v. Des Moines (1969) addressing student-athletes and free speech to glean the First Amendment values underpinning the courts’ decisions. This article will then offer a discussion of the case analysis that suggests that courts are more likely to apply increased scrutiny to university officials’ attempt to regulate expressions on public issues. Finally, the article ends with some suggestions and ideas—informed by the First Amendment values identified in the doctrinal analysis—for courts, school administrators, and scholars to consider when evaluating the regulation of student-athlete speech.
Institutional Restrictions to Student-Athlete Speech
Students who participate in intercollegiate sports are not just students of the academy, but also competitive athletes who may be the most regulated and scrutinized students on campus. While they represent less than 2.5% of all college students enrolled nationwide (Schwarb, 2018), they are subject to numerous regulations not applicable to the general student body, including curfew rules, physical examinations, academic progress measurements, and many other rules under National Collegiate Athletic Association (NCAA) bylaws, conference rules, and institutional codes of conduct. As the Supreme Court has noted, albeit in the interscholastic context, school officials and athletic leagues may properly condition participation in athletics with a greater limitation of constitutional rights, to achieve effective athletic competition (see Tennessee Secondary Sch. Athletic Ass’n v. Brentwood Academy, 2007). This section will address the special regulatory environment that collegiate-athletes are subject to and the common speech regulations and restrictions in place for students involved in intercollegiate sport. This modest review may not capture the entire breadth of relevant institutional restrictions to student-athlete speech, but it attempts to address the restrictions that are most common.
First, student-athletes at public institutions are members of the university student body and are subject to university-wide conduct and speech codes that must comply with the First Amendment. Universities may not punish or prohibit speech based on its viewpoint, even if the speech is hateful or deeply offensive. Unfortunately, many institutions continue to employ speech codes that violate free speech principles. In 2020, the Foundation for Individual Rights in Education (FIRE) surveyed 471 universities (366 were public institutions) and found that close to one quarter of the institutions maintained at least one policy that substantially restricts freedom of speech (see FIRE, n.d.). Many campuses also hamper free speech by levying prohibitive security costs on student organizations that sponsor campus speakers or by requiring students to register their expressive activities and seek advance university approval. 1
Furthermore, collegiate-athletes are subject to a variety of contractual agreements that often implicate speech rights to participate in intercollegiate athletics. The relationship between the student-athlete and university is, at its core, contractual in nature, and this relationship begins well before a student-athlete enters college: Athletic recruits commit to a college by signing a contract known as a National Letter of Intent (NIL Program, n.d.), which binds recruits to a collegiate program in exchange for financial aid. Student-athletes subsequently enter a formal contractual relationship with the university in the form of an athletics financial aid agreement and, although some universities offer 4-year financial aid offers, most athletic scholarships are 1-year agreements (Soriano & Kerr, 2020). College programs—pursuant to NCAA bylaws—have broad discretion to annually renew (or cancel) a student-athlete’s financial award based on whether the student conforms to program rules (Soffian, 2015). For instance, under Bylaw 15.3.4.2 of the 2018–2019 NCAA Division I Manual, institutional financial aid based in any degree of athletics ability may be reduced or cancelled . . . if the recipient (c) Engages in serious misconduct warranting substantial disciplinary penalty; or (d) Voluntarily (on his or her own initiative) withdraws from a sport at any time for personal reasons . . . (National Collegiate Athletic Association, 2018, pp. 208–209)
Such grant-in-aid agreements are universally contingent on the student-athlete’s maintenance of eligibility, avoiding “serious misconduct,” and actively participating in sporting activities. Thus, it is conceivable that symbolic speech acts such as abstention from official team activities and games could be construed as a “voluntary withdrawal” and the basis for a breach of the grant-in-aid agreement.
Collegiate-athletes are also subject to institutional athletic program regulations and codes of conduct. A review of Pac-12 student-athlete handbooks from 2017 to 2020 shows that a majority of the athletic programs employ athletic department codes of conduct in addition to general conduct codes for the entire student body. 2 For example, the UCLA athletic department’s code of conduct found in the 2017–2018 Student-Athlete Handbook prohibits student-athletes from making public statements or gestures that are “detrimental, discriminatory, or hateful about the institution, team, coaches, administration, fans . . .” (p. 14). While some of the athletic departments hold student-athletes to standards set by the general student conduct code, other programs, such as the University of Utah, stipulate a broad scope of authority to dismiss student-athletes who are “no longer in the best interests of the team” or for conduct that has “compromised the reputation of the team, the athletics program, or the University” (University of Utah Athletics Department, 2020, p. 7). Symbolic acts of protest, such as kneeling during pregame ceremonies or wearing of colored armbands could conceivably be swept up under such broad provisions, especially if the viewpoints are not aligned with the “reputation” of the team or university. Several of the program handbooks also explicitly point out that participating in athletics is a “privilege”—not a legal right—underscoring the discretion that university officials have to discipline student-athletes for violations of the code. 3 This privilege is contingent on the student-athlete’s conformity to code provisions and courts have generally construed them as contractual in nature (Green v. Sandy, 2011; Milo v. University of Vermont, 2013). The issue then turns to whether student-athletes waive their First Amendment rights in exchange for the “privilege” of playing for a college program? Under the unconstitutional conditions doctrine, the government may not deny a privilege or benefit on a basis that infringes a constitutional right, especially the freedom of speech (see Elrod v. Burns, 1976), and some scholars have argued that a waiver of free speech rights to maintain the benefit of being a scholarship-athlete is unconstitutional (LoMonte & Hamrick, 2020). However, no court has yet addressed this constitutional issue as it relates to student-athletes’ contractual relations with the institution.
Moreover, student-athletes are beholden to the rules, policies, and discretion of their coaches pursuant to the express and implied authority the administration has delegated to them. As agents of the state, public university coaches are subject to the same constitutional restraints as other university officials. Yet NCAA bylaws regarding the responsibilities of and the accountability of coaches are written in broad, general terms, which puts the onus on coaches to develop rules for student-athletes to ensure institutional compliance. 4 While most college programs have student-athlete codes of conduct in place, few programs have similar codes for coaches (Steinbach, 2007). Irrespective of the fact that public university coaches are bound to constitutional limitations, there is typically a quasi-loco parentis relationship between coaches and players, leading student-athletes to be highly deferential to coaches, who are often viewed as their most influential mentors and are frequently sought after for parental-type assistance (Fried & Bradley, 1994). As one circuit court explained, the primary role of professors is to guide students through discussion and debate of various viewpoints in a discipline, but the coach’s role is to train student-athletes on “how to win on the court. The plays and strategies are seldom up for debate. Execution of the coach’s will is paramount” (Dambrot v. Central Michigan University, 1995, p. 1190). When it comes to team management, playing time, and position on a team, student-athletes are beholden to the authority of their coach, leading to substantial deference to a coach’s authority, including the acceptance of restrictions on speech regardless of their legality. Student-athletes’ fear of retaliation, in conjunction with a quasi-loco parentis relationship, helps explain why student-athletes are reluctant to challenge rules and policies enforced by coaches, and why so few First Amendment cases have reached the courts. For instance, the act of boycotting team activities or games—without the support of coaches—may violate team rules, resulting in decreased playing time, suspension, or dismissal. Nonconformity with a coach’s rules may further jeopardize a student-athlete’s professional aspirations by souring the relationship with the coach and the networking opportunities that arise from it.
Moreover, this highly regulatory environment evokes a public workplace or employee dynamic, raising the notion that student-athletes should be treated similarly to public employees of the university (Epstein & Anderson, 2015; McCormick & McCormick, 2006). In fact, at least one circuit court has applied such analogous reasoning, holding that student-athletes “have greater similarities to government employees than the general student body” (Lowery v. Euverard, 2007, p. 597). If collegiate-athletes are recognized as public employees, their speech rights could be severely limited and governed by the test set forth in Pickering v. Board of Education (1968, p. 568), which measures whether the employee’s speech addresses a matter of public concern and, if so, whether this interest outweighs the employer’s interest in operational effectiveness. 5 However, the public employee speech approach is fraught with complications in application: Would non-scholarship-athletes (e.g., “walk-on” athletes) be considered employees? Is it possible to separate speech pursuant to the official duties of student-athletes from their responsibilities and status as college students in a highly regulated environment? Thus far, there has been little legal support to recognize an employer–employee relationship between the university and student-athletes (Hermandorfer, 2014; LoMonte & Hamrick, 2020). In recent years collegiate-athletes have legally challenged their amateur status in court and through administrative review by the National Labor Relations Board, but have found little success in their attempts to be classified as “employees” of the university (Berger v. N.C.A.A., 2016).
In sum, student-athletes are bound by the regulations and restrictions promulgated by the university, athletic department, conference, and coaches, in exchange for the “privilege” of being a student-athlete—making them the most scrutinized individuals on campus. The reality is that student-athletes occupy a special status unlike other students within a university. However, there is no constitutional right to participate in organized sport, and the voluntary nature of athletic competition raises questions as to whether collegiate-athletes should expect that their civil liberties will be afforded the same degree of protection as other students (see Veronia Sch. Dist. 47J v. Acton, 1995, p. 657). Furthermore, courts have repeatedly afforded public universities with a high degree of judicial deference with regard to institutional governance (Park, 2020). A constitutional examination of student-athlete speech rights must therefore account for the wide breadth of institutional restrictions imposed on student-athletes—including those enabled by contractual agreements or personal acquiescence—which courts are likely to consider, and a First Amendment doctrinal analysis alone may not address. Nonetheless, while collegiate-athletes are subject to greater institutional scrutiny, they are still public university students and “[s]tate colleges and universities are not enclaves immune from the sweep of the First Amendment” (Healy v. James, 1972, p. 180). Public university officials are still bound by First Amendment limitations, yet the extent to which university programs may constitutionally limit or curtail speech of its student-athletes remains unsettled.
Research Method
A doctrinal approach was utilized to analyze federal cases since Tinker v. Des Moines (1969), which address First Amendment speech disputes between student-athletes and school officials to contextualize and tease out the First Amendment values that underpin the courts’ decisions. Thus, the time frame for the case analysis runs from 1969 to 2020. This study relied on Westlaw, an online legal research service that includes databases for state and federal cases and statutes. A Westlaw search using four sets of word combinations were used, including “demonstration,” “speech,” “university,” and “student-athlete,” which produced 64 cases; “student athlete,” “First Amendment,” and “protest,” which produced 86 cases; “college athlete” and “First Amendment” produced 172 cases; and “student athlete” and “First Amendment” produced 234 cases; the scope of the search was broad and included district, circuit, and Supreme Court cases. After eliminating cases that (a) did not directly address individual First Amendment speech rights of student-athletes as a determinative or material issue, (b) involved lower court decisions that were appealed to appellate circuit cases, and (c) were duplicate case matches from the multiple set of searches, a total of 15 cases were examined under the “Case Analysis” section.
While First Amendment jurisprudence tied to student-athlete speech is sparse, existing case law addressing collegiate-athlete speech rights is even more limited. Although the analysis centers on addressing speech rights of public university student-athletes, cases involving interscholastic (i.e., high school) speech disputes were also examined due to the fact that both the Supreme Court and lower courts cite to, and many lower courts rely on, the secondary school speech doctrine to evaluate free speech cases within the university context. Furthermore, the interscholastic cases also provide analytical value as legal reference points, offering a potential preview of how courts in the future may evaluate college student-athlete cases, despite their questionable precedential value. Finally, the inclusion of secondary school cases allows for a more comprehensive examination of student-athlete speech cases to glean the First Amendment values at play, which work to inform a theoretical approach under the existing student speech doctrine.
Student-Athlete Speech: Doctrinal Considerations
The First Amendment right to free speech is not absolute, and the Supreme Court has carved out several exceptions to First Amendment safeguards, including speech by individuals that occur within a context where order and discipline are deemed necessary. For instance, public employees, as discussed earlier, may have their speech regulated to a greater degree than citizens generally. Furthermore, in Parker v. Levy (1974), the Court noted that the specialized character of the military requires a different application of the First Amendment: “[t]he fundamental necessity for obedience, and the . . . imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it” (p. 758). The speech of students within the public school setting—another context where order and discipline are necessary—can also be constitutionally limited more so than speech outside the school setting.
As the Supreme Court made clear more than 50 years ago in Tinker v. Des Moines (1969), students in public schools do not shed their “constitutional rights to freedom of speech or expression at the schoolhouse gate” (p. 506). The Court determined that school officials could not restrain student speech unless they articulate facts that may reasonably lead school officials to forecast substantial disruption of or material interference with school activities. Since Tinker, the Supreme Court has articulated several standards for determining whether school officials may discipline student speech. 6 Yet the doctrinal roots of student speech have been derived from the secondary school context, which logically raises the question, “Does Tinker and its progeny apply to speech in the university context?”
Although the Supreme Court has not specifically addressed whether the general rules applicable under standard free speech doctrine apply in the university context, the Court has accepted the view that universities play a distinct role in our public discourse (Horwitz, 2007; Park, 2020). In Healy v. James (1972), the Supreme Court adopted the principles of Tinker when it held that a state college violated the First Amendment when it denied official recognition of a campus organization based on the views associated with the group. The Court also alluded to the idea that speech rights of university students are coextensive with adults in society. Moreover, the Supreme Court has held that universities cannot restrict student access to university facilities based on the viewpoint of the student speaker (see Rosenberger v. Rector & Visitors of Univ. of Va., 1995). In Papish v. Board of Curators of the University of Missouri (1973), the Supreme Court held that a state university’s expulsion of a graduate journalism student for distributing newspapers on campus that were deemed “indecent” by university administrators violated the First Amendment. A divided Court in Papish explained, “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency’” (p. 670).
Furthermore, the Supreme Court has never formally adopted the K–12 student speech doctrine to the university setting. This has led to some confusion and equivocal application of the student speech doctrine to the university context. In fact, several lower courts have imported some of the speech standards from the K–12 student speech doctrine and applied them to curricular and extracurricular speech in the university setting, 7 while other courts have questioned the applicability of Tinker and its progeny to universities. 8 In McCauley v. University of the Virgin Islands (2010), the Third Circuit concluded that public university officials have “significantly less leeway in regulating student speech than public elementary or high schools” and “the teachings of Tinker, Fraser, Hazelwood, Morse, and other decisions involving speech in public elementary and high schools, cannot be taken as gospel in cases involving public universities” (p. 247). The Third Circuit persuasively noted the distinguishing attributes of the university compared with K–12, namely, the differing pedagogical goals, the in loco parentis role of K–12 officials, the special needs of school discipline in K–12, differences in maturity, and the fact that many college students reside on campus and are therefore subject to university regulations at almost all times.
Unlike students in the secondary school context, most university students are legal adults, have higher levels of maturity, and occupy an environment guided by principles of intellectual freedom (Modecki, 2008). The reluctance by many lower courts to apply the student speech doctrine to higher education point to the unease of applying a free speech framework based on secondary school settings to the university environment. At a minimum, university speech regulations placed upon collegiate-athletes must therefore satisfy the student speech doctrine established in Tinker although speech in the university context begs for greater protection. While Tinker may provide a doctrinal “floor” to university speech regulation, many courts have taken into account the distinctive environs of the academy when applying constitutional safeguards to the speech of university students and have applied more exacting scrutiny to the decisions by university officials.
Case Analysis
Student-Athlete Speech Related to Matters of Public Interest
One of the earliest cases to address collegiate-athlete speech post-Tinker involved a planned political protest by collegiate-athletes who wanted to protest racially discriminatory practices of an opposing team’s university. In Williams v. Eaton (1971), several Black University of Wyoming football players were dismissed from the team after announcing their intent to wear black armbands during a football game with Brigham Young University (BYU). Similar in form to the armband protests in Tinker, the players asserted that the black armbands were intended to protest racial policies at BYU, but after meeting with the head coach to discuss the protest, the players were summarily dismissed from the team pursuant to a “football coaching rule” that forbid demonstrations or protests (p. 425). According to the coach, protests and demonstrations “would have an adverse effect upon team unity, [and] upon their grades . . .” and this rule was put in place to maintain proper discipline on the team (p. 431). Applying Tinker, the Tenth Circuit held that there was no adequate showing of the players’ conduct producing or would produce any material disruption of class work or substantial disorder of invasion of the rights of others. Ultimately, after reviewing a subsequent appeal, the court ruled that denying the request for the armband display did not violate Tinker because the decision was in furtherance of state policy regarding religious neutrality. However, in several subsequent cases discussed below involving student-athletes engaged in political speech or expression on public issues, courts have largely been more receptive to players’ First Amendment claims and less deferential to the disciplinary decisions of school officials.
In Boyd v. Board of Directors of McGehee School District (1985), 25 Black student-athletes walked out of a pep rally and boycotted participation in a scheduled football game to protest the coach’s purported racial animus and manipulation of an election to preclude a Black female from becoming the homecoming queen. The coach suspended the boycotting players from the team, citing an unwritten rule that any player who missed a game or practice without a proper excuse would be suspended; several players subsequently filed suit against the coach and school officials, claiming an infringement of the players’ right to free speech. The district court concluded that there was no substantial intrusion of the work and discipline of the school when players walked out of the pep rally and boycotted a scheduled game. Furthermore, the court was unconvinced that the coach’s unwritten policy regarding suspensions “takes precedent over a student’s right of free expression . . . Peaceful protest by students in the factual backdrop of this controversy may not be contingent upon the uncontrolled will of the head coach” (pp. 92–93).
Just 2 years later, in Hysaw v. Washburn University of Topeka (1987), several Black players on the Washburn football team complained to university officials that promises regarding scholarships had not been honored, and that several White players with inferior athletic skills were being granted favorable treatment and superior scholarships. After an unsatisfactory response from university officials, players boycotted several team practices and meetings to protest racial mistreatment before being removed from the team. Just as in Boyd and Williams, school officials in Hysaw argued that players were dismissed not because of their acts of protest, but because the players violated team policy whereby unexcused absences from team practices and meetings would “result in disciplinary action, including dismissal from the team” (p. 946). But the facts showed that missing practice to protest racial mistreatment would be excused by the coaching staff, raising questions as to whether the reasons for dismissal were adequate. Applying Tinker, the court in Hysaw disagreed with university officials who argued that the boycott severely disrupted the football team and concluded its analysis holding that it “will not place the interests of participants in a university extracurricular activity above the rights of any citizen to speak out against alleged racial injustice without fear of government retribution” (p. 946).
In Seamons v. Snow (1996), a high school football player was assaulted by several team members during a hazing incident in which he was forcibly restrained to a towel rack while nude in the locker room shower. The student reported the incident to school authorities, and the coach ordered the student to apologize to the team captains (several of whom were involved in the hazing) for reporting the incident. After refusing to apologize, the coach dismissed the student from the team, and student filed suit alleging that the dismissal was in violation of the First Amendment. Applying Tinker, the Tenth Circuit held that the player’s speech was neither disruptive to classwork nor had the imprimatur of school sponsorship and was entitled to First Amendment protection. The court alluded to the public interest nature of the student-athlete’s speech, and concluded that it was the type that participants, family members, school administrators and coaches needed to be informed of: We simply see no overriding school interest in denying Brian the ability to report physical assaults in the locker room. At most, the school’s interest here was based on its fear of a disturbance stemming from the disapproval associated with Brian’s unpopular viewpoint regarding hazing in the school’s locker rooms. (pp. 1237–1238)
V.A. v. San Pasqual Valley Unified School District (2017) is perhaps the first student speech case to address the symbolic protest act of kneeling during the playing of the national anthem. In V.A., a district court issued a preliminary injunction against school officials for a district-wide policy banning political protests, including kneeling during all athletic events. During the 2017 football season, a student-athlete knelt during the playing of the national anthem before several games to express his “personal feelings and concern about racial injustice” (p. 1). After an incident in which a few students from an opposing school made racial slurs, and sprayed water at some of the students following the kneeling, the school district issued a memorandum of rules banning kneeling or similar forms of political protest. The court however, found kneeling to be protected symbolic speech, and held that the player’s silent kneeling was not likely to cause a substantial disruption or material interference with school activities. Moreover, although the player’s actions occurred during a school sanctioned activity, the court pointed out that similar to a student’s display of an armband during school hours, a player’s silent act of kneeling during the national anthem is easily interpreted as his own message to the community, “much like Colin Kaepernick’s expression is interpreted as his own, and not imputed to the San Francisco 49ers” (p. 6).
In Gonzales v. Burley High School (2019), a district court ruled in favor of student-athletes who engaged in a peaceful “sit-in” to protest their coach’s bullying and the coach’s failure to follow appropriate sport safety measures. Several student-athletes were suspended after taking part in the protest, and to rejoin the team, the students had to sign a stipulation agreement that outlined several conditions including a formal apology, community service, and a ban on any negative comments about the coach or school on social media. The students signed the agreement but included an addendum reserving their right to engage in a formal grievance process; the next day, school officials dismissed the students from the team and the students brought First Amendment claims against school officials for infringing on their right to protest. Ultimately, the court in Gonzales concluded that school officials failed to establish facts that could lead officials to forecast disruption or that demonstrated actual disruption to school activities.
A recent 2020 case—Kesterson v. Kent State University—addressed a First Amendment retaliation claim by a collegiate softball player who claimed that she was subject to harassment and disparate treatment after revealing to her coach that another student-athlete had sexually assaulted her. The Sixth Circuit reversed the district court’s summary judgment ruling in favor of the coach, holding that factual questions remained as to whether the coach’s treatment of the student-athlete after the coach was told about the assault would deter a reasonable person from speaking out on an issue that was undoubtedly of public concern. The court in Kesterson made the point that it is “beyond debate” that a public college coach cannot retaliate against a student-athlete “for reporting improprieties” (pp. 525–526).
Student-Athlete Speech Related to Matters Not of Public Concern
In contrast to the cases addressed above, the following lower court cases, involving student-athlete speech related to personal grievances, including issues over coaching methods, verbally abusive behavior by coaching staff, or offensive gestures in the context of sport, resulted in outcomes less favorable to the speech rights of student-athletes and more deferential to the decisions of coaches and school officials. In Marcum v. Dahl (1981), scholarship-athletes of the University of Oklahoma women’s basketball team expressed grievances regarding their coach’s basketball competency and lifestyle to the athletic department, and subsequently commented to the press that if the coach remained, they would not continue to play for the program. The team was divided: scholarship-athletes favored an assistant coach who they felt had superior coaching prowess, while the non-scholarship-athletes supported the head coach. Soon after the comments to the press were made, the scholarship-athletes were notified that their scholarships would not be renewed, and the athletes alleged that the refusal to renew their scholarships was motivated by their statements to the press, in violation of the First Amendment. Instead of applying Tinker, the Tenth Circuit applied the public employee speech standard in Pickering and held that the scholarship-athletes’ comments to the press did not involve matters of public concern and the disharmony within the program “disrupted the effective administration of the basketball program” (p. 734). According to the court, the athletes’ comments to the press therefore did not invoke First Amendment protection.
In Wildman v. Marshalltown (2001), the Eighth Circuit held that school officials could constitutionally discipline a student-athlete by conditioning her participation on the basketball team with an apology to her teammates for writing a letter criticizing the coach. The court noted that the letter addressed the student-athlete’s grievance over the coach’s decision not to promote her to the varsity team—which the court found to be “insubordinate speech”—but with the implication that if the speech was of high value (e.g., addressed a matter of public concern), it may have been protected (p. 772). In Richard v. Perkins (2005), the court also found that a student-athlete’s speech was not constitutionally protected because the speech did not touch “upon matters of public concern” (p. 1217). A scholarship-athlete at the University of Kansas was denied a renewal of his scholarship based on “an alleged act of disrespect” toward the coach, but after appealing the nonrenewal decision to the university appeals board, the student’s financial scholarship was reinstated (p. 1215). However, the coach subsequently expelled the student from the team, prompting the athlete’s suit alleging that his expulsion was in retaliation for appealing the nonrenewal decision. The court applied a First Amendment retaliation standard to the athlete’s appeal, concluding that it was not protected under the First Amendment because it “merely sought redress for private rights” and therefore did not touch upon matters of public concern (p. 1217).
In Pinard v. Clatskanie School District 6J (2006), high school basketball players delivered a petition requesting their head coach to resign due to his verbally abusive coaching style before expressing to school administrators their unwillingness to further play under the coach. After meeting with school officials, the players were presented with two options: either participate in a mediation process and board the team bus to play the next game or adhere to their position and forfeit their ability to play the next game. All but one of the players chose not to board the bus and boycotted the next game; school administrators then permanently suspended the players who did not board the bus. While the district court had imported the government employee “public concern” test established in Pickering v. Board of Education (1968) to the students’ speech, the Ninth Circuit appellate court held that the district court misapplied the legal standard, and should have applied Tinker. The Ninth Circuit held that the players’ petition neither disrupted school activities nor impinged on the rights of other students, but affirmed the lower court’s finding that the players’ refusal to board the bus materially disrupted the operation of the basketball team: “even if we viewed the plaintiff’s boycott as symbolic speech . . . school officials could permissibly discipline players for this disruptive conduct” (p. 769–770).
In Lowery v. Euverard (2007), several high school football players dissatisfied with their coach’s methods were dismissed from the team after signing a petition to have the coach replaced; the petition read as follows: “I hate Coach Euvard [sic] and I don’t want to play for him” (p. 589). After reiterating that Tinker does not require certainty of disruption, only the reasonable forecast of substantial disruption, the Sixth Circuit held that it was reasonable for school officials to believe that the petition would disrupt the team by eroding the coach’s authority and creating division. The court noted that when student-athletes “go out” for a team they implicitly agree to submit to the coach’s authority, and “[w]hen the government manages a voluntary program it may restrict conduct, including speech, that threatens the purpose of the program” (p. 600). Interestingly, the court also pointed out that players do not completely waive their constitutional rights when they join a team: “a coach could not dismiss a player simply because the player had religious or political views that were unpopular with his teammates” (p. 600). But by making this point regarding religious or political speech, the Sixth Circuit appears to prioritize some student-athlete speech content over others by recognizing categorical distinctions (i.e., political speech vs. speech critical of coaching methods) under Tinker’s “substantial disruption” or “material interference” standard. In other words, the court “makes a value judgment on the speech itself” (p. 605).
In Green v. Sandy (2011), a scholarship-athlete for the Eastern Kentucky University (EKU) women’s soccer team expressed concerns to her head coach, the Athletic Director, and EKU President, regarding the coach’s management of the program and its retention rate. Less than 2 months later, the athletic department informed the student-athlete that she was dismissed from the team, and her financial aid was reduced for the upcoming year; neither the university nor athletic department provided an explanation for her dismissal. The student-athlete claimed that EKU officials removed her from the team in retaliation for expressing her concerns about the soccer program, but the court concluded that no First Amendment right was violated. The court alluded to the Tinker standard and held that EKU officials could reasonably have forecasted that the student-athlete’s criticisms of the coach’s methods and decisions would disrupt the team, and the dismissal was therefore constitutionally permissible.
A few recent cases have involved offensive blurts or gestures by student-athletes in the context of sport and were decided on qualified immunity grounds in favor of school officials. In Ryan v. Mesa Unified School District (2016), a student-athlete tweeted a cryptic note during a softball tournament trip: “ITS WAR BITCHES” to her account (which included most members of her team) and was later dismissed from the team due in part to the tweet (pp. 1085–1086). The court ultimately agreed that the coach’s interpretation and forecast—that the tweet would cause a substantial disruption to team unity or harm the individual players who believed they were targeted—was reasonable under Tinker. Moreover, in Radwan v. University of Connecticut Board of Trustees (2020), a former collegiate soccer player claimed that her First Amendment rights were violated when university officials dismissed her from the team and canceled her athletic scholarship after the player raised her middle finger to an ESPNU camera during an on-field celebration. Although the court noted that raising one’s middle finger has been recognized as expressive conduct, the student-athlete admitted that the gesture was inadvertent, directed at no one in particular, and was an act of “youthful, celebratory exuberance” (p. 26). However, the court granted university officials with qualified immunity against the player’s free speech claim, concluding that it was unclear as to whether university discipline of vulgar or lewd speech is governed by the student speech doctrine established within the K–12 context.
Discussion and Conclusion
A survey of the court decisions above reveals a divergence in the degree of deference afforded school officials based on whether the student-athlete speech reflected an expression on public issues, including speech protesting racial discrimination, hazing, and the lack of health and safety protocols, versus speech addressing personal or non–public issue grievances, such as criticism of coaching methods and management, complaints regarding playing time, or offensive blurts or gestures. The cases discussed illustrate that courts have made a tacit, if not explicit, value judgment with regard to student-athlete speech. The disparate treatment of student-athlete speech points to the courts’ adoption of a core First Amendment value: promoting public discourse on issues of public interest (Meiklejohn, 2014).
As Justice Stephen Breyer (2005) asserts, speech related to the shaping of public opinion is afforded “especially strong pro-speech judicial presumptions” (p. 42). Such favored treatment of speech related to the shaping of public opinion invokes the self-governance theory championed by Alexander Meiklejohn (2014), which holds that the core purpose of the First Amendment is to promote public discourse on public issues to produce informed opinions and voting decisions. According to Meiklejohn, many forms of expressive activity are vital in establishing an informed citizenry, including expression in education, philosophy, science, literature, and the arts, but “[w]hat is essential is not that everyone shall speak, but that everything worth saying shall be said” (p. 25). In alignment with the self-governance theory, the Supreme Court has in fact privileged speech on matters of public concern 9 and, in Snyder v. Phelps (2011), articulated that speech is of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community” or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public” (p. 453). To distinguish public from private concern, the Snyder majority held that courts must examine the “content, form, and context” of the speech, where “no factor is dispositive” (pp. 453–454). The speech “as a whole” must therefore be examined to determine whether it informs the program of self-governance. Clay Calvert (2012) asserts that Snyder’s conceptualization of “public concern” points to the fact that this concept transcends “any silo of communications law” and “permeates First Amendment jurisprudence” (pp. 53–54). The court rulings discussed above are indicative of how this conceptualization of speech on matters of public concern have certainly permeated (and been privileged) in factual situations involving student-athlete speech.
When student-athletes engaged in speech pursuant to matters in the public interest or the shaping of public opinion, the courts responded accordingly with increased scrutiny of school officials’ decision-making (i.e., less deference) and a more speech-protective presumption was afforded to the athletes’ expression. Despite the fact that student-athletes in cases such as Boyd and Hysaw had boycotted practices and games—which could forcibly be argued as a substantial disruption to school activities or “team unity”—the courts found the acts of protest, which were tied to the discussion of public concerns, to be protected speech under the First Amendment. However, when disputes centered on student-athlete grievances over coaching methods or intimidating behavior, the expressive activities therein, such as signing petitions or voicing concerns to school officials, were found to be unprotected under a retaliation or substantial disruption standard. It is difficult to reconcile how scenarios where students petition their coaches to resign (as in Lowery) or write letters critical of them (as in Wildman) are considered “substantially disruptive” but boycotting activities or engaging in sit-ins (as in Gonzales) is somehow qualitatively distinguishable—and not a substantial disruption. However, what is distinguishable is the value assigned to the underlying speech, and whether the speech is inextricably tied to the core First Amendment value of expression on matters of public concern. While a highly fact-intensive inquiry is required to determine retaliation or whether substantial disruption of school activities is reasonably foreseeable, expressive conduct of student-athletes that are neither political nor speak to public issues do not invariably establish that such speech is unprotected constitutionally. Rather, case precedent from several circuits noted above demonstrate that courts have ascribed greater pro-speech presumptions to speech that promote public discourse pursuant to the shaping of public opinion.
Furthermore, the case analysis also reveals a wide difference in the scope of what constitutes a substantial disruption; several of the cases point to a disruption of narrow and amorphous concepts such as “team unity” versus a more tangible and broad scope of disruption (e.g., public sporting events or disruptions to class). In Hyman, Pinard, and Lowery, the respective courts analyzed whether the student-athletes’ speech disrupted the team or infringed upon the rights of other team members (Hyman), materially disrupted “the operation of the boys’ varsity basketball team” (Pinard), and whether a petition signed by football players “would substantially disrupt the team” (Lowery). Yet in cases such as Williams and Boyd, the courts construed the potential disruption by the student-athletes’ conduct more broadly, including whether the players’ speech constituted “material disruption of class work [or] substantial disorder of invasion of the rights of others . . .” (Williams) or whether the speech acts amounted to “substantial intrusion of the work and discipline of the school” (Boyd). In V.A. v. San Pasqual Valley, the court found that the football player’s silent kneeling during the playing of the national anthem would not likely cause a “substantial disruption of or material interference with school activities” by evaluating the game atmosphere as a whole, including both past reactions and potential future reactions by opposing fans (p. 6). Nowhere does the court address the potential impact of the player’s protest on team unity, the operation of the football team, or program discipline. Nonetheless, courts have applied a wide net as to what amounts to a substantial disruption, from an amorphous concept of “team unity” to “work and discipline of the school” and, because the Supreme Court has yet to establish articulable standards to determine the proper scope of inquiry, university officials are free to wield a broad scope of authority as to when and where substantial disruption may reasonably occur.
In sum, the cases point to a strong pro-speech presumption tied to speech that address matters of public concern, but they also reveal a lack of consensus on the scope of the “substantial disruption” inquiry as applied to student-athlete speech. However, what follows are some ideas and suggestions—informed by the doctrinal analysis and First Amendment theory—for courts, practitioners, and scholars to consider when evaluating public institutional regulations on student-athlete speech. The starting point for a constitutional analysis of student-athlete speech should begin with a values-based factor to measure whether the speech is made as an expression on public issues, or whether the speech is made pursuant to personal matters or grievances. As the Supreme Court has pointed out, “expression on public issues ‘has always rested on the highest rung of the hierarchy of First Amendment values’” (F.C.C. v. League of Women Voters, 1984, p. 381). While speech on matters of public opinion is deserving of pro-speech presumptions (Breyer, 2005), this does not mean courts should graft a public concern requirement or a threshold question as to whether the speech elicits First Amendment protection under the substantial disruption test. Rather, courts should measure the overall character and purpose of the student-athlete’s speech as one factor to consider: Does the speech fall within the scope of the First Amendment’s core values, such as “public discussions of public issues” (Meiklejohn, 2014) and the shaping of public opinion? Who is the relevant potential audience that the student-athlete is trying to reach? Protests in the form of boycotts and pregame kneeling over racial injustices or health and safety measures related to COVID-19 certainly lie at the center of important public debates in which student-athletes urge public action; such speech should be afforded with greater pro-speech presumptions and greater scrutiny of school officials’ regulatory actions.
Collegiate-athletes are undoubtedly some of the most scrutinized and regulated students on campus, and school officials have been afforded a high degree of deference to determine appropriate rules to maintain order and discipline. As Dan Kozlowski (2011) uncovered in his study of post-Tinker cases, courts have largely granted substantial deference to school officials—“far more leeway than the court arguably sanctioned in Tinker” (p. 363). However, when evaluating student-athlete speech regulations, courts should also bear in mind that students’ freedom of expression within the university context is vital for individual growth; this requires courts to consider the free speech value of individual self-realization, a value which favors not more—but less—judicial deference to university officials’ regulation of student-athletes’ expressive conduct. Under the liberty theory espoused by C. Edwin Baker (1992), free speech merits protection because it furthers the value of self-fulfillment and the realization of one’s identity as a civic participant. According to Baker, “[s]peech or other self-expressive conduct is protected not as a means to achieve a collective good but because of its value to the individual,” and First Amendment protection of speech exists to foster “individuals’ self-realization” (p. 5). In fact, the free speech value of individual autonomy was recognized in the Supreme Court’s seminal opinion on student speech. In Tinker, the Court evoked the liberty theory when it held that school officials do not have absolute authority over students: Students in school as well as well as out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State . . . They may not be confined to the expression of those sentiments that are officially approved. (p. 511)
Moreover, unlike the compulsory nature of secondary education, universities are institutions characterized by the spirit of free inquiry, and colleges have an affirmative duty to facilitate intellectual exploration, diversity of viewpoints, and to contribute to public discourse necessary to develop an informed citizenry (Park, 2021). Unlike the K–12 setting, collegiate-athletes are also adults, and the differences in maturity raises skepticism that university officials should be afforded the same degree of deference and latitude to regulate student speech as in the K–12 context (Papandrea, 2016). The nature of intercollegiate athletics as an extracurricular activity is also far removed from the academic curriculum, which points to greater speech protection than speech in the classroom setting. As activities of the university move farther away from its core academic mission, constitutional protections of institutional academic autonomy should correspondingly be reduced (Hafen, 1987). Disruptions that affect a pedagogical purpose should be afforded less speech protection, versus disruptions affecting noneducational functions. For example, punishing student-athletes for wearing “pro-union” armbands to practice or signing a petition requesting the coach to not patronize a racially discriminatory business would not serve an educational function. However, courts should review and weigh both the degree of disruption and the extent that it affects an identifiable pedagogical function. For instance, in V.A. v. San Pasqual, the court pointed out that only a few students from an opposing team’s school taunted other students after a football player knelt during the national anthem, finding no substantial disruption. Yet if the player’s symbolic act led to a major upheaval during the game, leading to its cancelation, a substantial disruption could conceivably have been found.
As the Supreme Court noted in Widmar v. Vincent (1981), “our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities” (p. 268). Nonetheless, any analysis of university regulations on collegiate-athlete speech must take into account the highly regulated nature of college athletics. But while they remain the most regulated and scrutinized members of the student body, collegiate-athletes continue to lend their voices to shape public opinion. Many student-athletes are finally starting to realize how influential their platforms are and, as more student-athletes speak out on matters of public concern, tensions will rise between campus officials and newly emboldened student-athletes. Informed by the free speech values identified from the doctrinal analysis of student-athlete speech cases, this article suggests that courts are likely to engage in greater scrutiny of school officials’ regulations on student-athlete speech when the speech in question addresses a matter of public concern; such speech will more likely be privileged over speech tied primarily to a matter of personal grievance. This article also offers some observations and ideas that should encourage collegiate-athletes to continue to engage in expressive conduct on public issues, to question long-standing dogma, and discover their place in political discourse.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
