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SEE YOU IN COURT! - November 2017

CABE Journal

November 1, 2017

Authors: Thomas B. Mooney

As the football season wound down in Nutmeg, Bob Bombast went on a Facebook rant against the players in the NFL who take a knee during the playing of the National Anthem.  Coach Rock, veteran coach at Nutmeg Memorial High School who was still stung by Bob’s statement that Nutmeg should find a coach who can win, was outraged that Bob was again commenting on matters beyond his ken.  Coach Rock went on Facebook to take on Bob directly: “Here we go again,” his post began.  “Bob Bombast is shooting off his big mouth again about football when his only experience has been sitting on his fat ass in the stands or at home as a spectator.  We should remind Bob that we live in America, and that football players, whether in the NFL or on my team, do not give up their free speech rights just because they play football.  If football players want to protest injustice, they have every right to take a knee!”

Several of Bob’s friends sent him a link to Coach Rock’s post, and predictably Bob was furious that a district employee would be so disrespectful to a veteran Board of Education member.  Bob immediately called Mr. Superintendent to ask when he would be firing Coach Rock for his impertinence.  Mr. Superintendent did his best to calm Bob down, and he told Bob to let him handle it by talking to Coach Rock.

Bob ignored Mr. Superintendent’s request, and he immediately responded, again on Facebook.  Starting with “Big Words from a Big Loser” in a new post, Bob went after Coach Rock hard.  Bob suggested snidely that Coach Rock should go back to school so that he can learn about the Constitution and perhaps even football.  Bob repeated his attack on the NFL players, and he decreed that any player or coach who would ever show such disrespect for the flag should be benched or fired.

Not one to shy away from a fight, Coach Rock doubled down.  Last Saturday, at the last game of the season, when the National Anthem started to play, Coach Rock bowed his head and took a knee.  There was some confusion among the players, who appeared to be surprised by the Coach’s action, but a couple of them hastily took a knee as well before the National Anthem concluded.

The Nutmeg Knights won the game that day, but Coach Rock had another battle on his hands.  Bob was incensed, to be sure, but this time he was not alone.  At the next meeting of the Nutmeg Board of Education, the list of speakers for public comment was three times longer than usual.  As the Board sat through over an hour of public comment, it heard from a divided community, with about two-thirds of the speakers criticizing Coach Rock for his actions, and about one-third criticizing Bob for starting the fight.

Mr. Superintendent closed his eyes and rubbed his temples gently as he listened to the public comment on the ongoing quarrel between Bob and Coach Rock, which apparently was now his problem.  A number of speakers demanded that Coach Rock be fired, and a number said that Bob should resign from the Board.  At the end of the meeting, Bob told Mr. Superintendent that public sentiment was clear – Coach Rock had to go.

What would you advise Mr. Superintendent to do?

*          *          *

Mr. Superintendent must be careful.  As a general premise, employees do not have the right to promote political causes when they are doing their jobs, and Mr. Superintendent has legitimate grounds to tell Coach Rock that he should not take a knee when coaching the team.  But both Coach Rock and the students he coaches have free speech rights under the First Amendment that Mr. Superintendent must respect.

As to Coach Rock, we must differentiate between his free speech rights when off duty from those he has when he is coaching the team.  The United States Supreme Court has held the First Amendment protects speech by public employees on matters of public concern as long as such speech is not disruptive (though even disruptive speech may be protected when its importance outweighs the disruption).  Connick v. Myers (U.S. 1983).  However, the United States Supreme Court has also held that First Amendment protections do not apply to employee speech that is “pursuant to duty,” i.e., employee speech made in the course of employment.  Garcetti v. Ceballos (U.S. 2006).  Thus, under the United States Constitution, Coach Rock had no right to take a knee in symbolic speech when coaching.

Complicating the analysis somewhat, our Connecticut Supreme Court held in 2015 that it would not follow the Garcetti rule in considering claims under the Connecticut Constitution if employee speech pursuant to duty involves “comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety.”  Trusz v. UBS Realty Investors, LLC. (Conn. 2015).  However, with due regard for greater employee free speech rights pursuant to duty under the Connecticut Constitution, Coach Rock’s symbolic speech while coaching the team was not protected because it related only to his personal views.

That said, Coach Rock retains his free speech rights on Facebook and elsewhere.  While inelegantly phrased, his criticism of Bob Bombast’s public statements was protected speech because it related to a matter of public concern.  To be sure, such speech may not be protected if it disrupts the operation of the school district, but Bob’s taking offense at Coach Rock’s statements was not disruptive:  Coach Rock does not work for Bob, and their relationship does not affect the operation of the school district.

As to the players, we note that Coach Rock’s actions could be disruptive because it tacitly invited students to join him or not to join him, potentially causing dissention on the team.  However, the students themselves have a right to free speech, symbolic or otherwise, as long as school officials do not reasonably forecast substantial disruption or material interference with the educational process.  Tinker v. Des Moines Independent School District (U.S. 1969).  Students may certainly “take a knee” during the recitation of the Pledge of Allegiance in class as long as they are not disruptive.

The issue is somewhat more complicated in team sports because “disruption” may include actions that affect team cohesiveness.  For example, student athletes who were dismissed from their team after circulating a petition calling for the dismissal of their coach lost a free speech claim because their actions undermined team unity.  Lowery v. Euverhard, (6th Cir. 2007).  However, unless and until student athletes cause disruption when they engage in symbolic speech, their actions will be protected by the First Amendment.

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