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?

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.

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.