Lowery v. Euverard
| Citation | 497 F.3d 584 |
| Decision Date | 03 August 2007 |
| Docket Number | No. 06-6172.,06-6172. |
| Parties | Jeff LOWERY, individually and as next friend of Derrick "Rabbit" Lowery, Lisa A. Lowery, individually and as next friend of Derrick "Rabbit" Lowery, Randy Giles, individually and as next friend of Jacob Giles, Stacey Guthrie, individually and as next friend of Joseph Dooley, James Spurlock, individually and as next friend of Dillan Spurlock, Lora Spurlock, individually and as next friend of Dillan Spurlock, Plaintiffs-Appellees, v. Marty EUVERARD, Dale Schneitman, Craig Kisabeth, Jefferson County Board of Education, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
ARGUED: Linda J. Hamilton Mowles, Lewis, King, Krieg & Waldrop, Knoxville, Tennessee, for Appellants. Matthew M. Scoggins III, Bass, Berry & Sims, Knoxville, Tennessee, for Appellees. ON BRIEF: Linda J. Hamilton Mowles, Lewis, King, Krieg & Waldrop, Knoxville, Tennessee, for Appellants. Matthew M. Scoggins III, Michael S. Kelley, Bass, Berry & Sims, Knoxville, Tennessee, for Appellees.
Before: SILER and GILMAN, Circuit Judges; ZATKOFF, District Judge.*
ZATKOFF, District Judge, delivered the opinion of the court, in which SILER, J., joined. GILMAN, J. (pp. 601-06), delivered a separate opinion concurring in the judgment.
Plaintiffs brought suit in federal court after they were dismissed from their high school football team. Defendants brought a motion for summary judgment based on qualified immunity, which the district court denied. On appeal, Defendants argue that Plaintiffs' dismissal was permissible under the rule governing student speech set forth in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). For the reasons set forth below, we REVERSE the district court's denial of Defendants' motion for summary judgment.
Derrick Lowery, Jacob Giles, Joseph Dooley, and Dillan Spurlock (hereinafter "Plaintiffs") were students at Jefferson County High School in Tennessee during the 2005-06 school year.1 All four were members of the Jefferson County varsity football team. Defendant Euverard became the head varsity football coach at Jefferson County in 2004. During the 2005 season, many of the Jefferson County football players, including Plaintiffs, became dissatisfied with Euverard's coaching methods. Plaintiffs allege that Euverard struck a player in the helmet, threw away college recruiting letters to disfavored players, humiliated and degraded players, used inappropriate language, and required a year-round conditioning program in violation of high school rules.
In early October of 2005, after discussions with Dooley and Lowery, Giles typed the following statement: "I hate Coach Euvard [sic] and I don't want to play for him." JA at 745. Giles and Dooley asked other players to sign the petition, which would be held until after the football season. Giles and Dooley intended to then give the petition to Defendant Schneitman, the principal of Jefferson County, in order to have Euverard replaced as head coach. JA at 580. Eighteen players eventually signed the petition, including Spurlock.
Euverard learned of the petition on October 7, 2005. Darren Whitehead, another player on the team, told Assistant Coach Ricky Upton about the petition, who then told Euverard. Euverard called an all-coaches meeting on October 9. Schneitman was also present at the meeting. At the meeting, the coaches discussed how to deal with the petition. The coaches decided to question the players individually to learn more about the petition.
When the players arrived for practice on October 10 they were told to sit in front of their lockers and remain quiet. Players were then taken one by one into an office in the weight room where they were interviewed by Euverard. Assistant Coach Brimer was also present in the office, taking notes. All the players were asked the same questions: (1) Have you heard about the petition?, (2) Did you sign it?, (3) Who asked you to sign it?, and (4) Do you want to play football with Coach Euverard as coach?
When Wesley Lee, a player who had signed the petition, was called for his interview, Lowery called out "are you alright?" Assistant Coach Pippenger then asked Lowery to come over. At first Lowery refused, and then walked over to Pippenger. Lowery told Pippenger "don't put your hands on me," or words to that effect, and refused to go outside with Pippenger. Giles and Dooley then got up and stood by Lowery. Pippenger took the three of them into the weight room, and told Euverard about the situation. Euverard attempted to interview the three boys individually, but they said they would only meet with Euverard as a group. Euverard told them that if they were going to be that way, they could pick up their things and leave. Giles, Dooley, and Lowery gathered their belongings and left. As they were leaving, Dooley said to the other players "I know how much you hate him, and you guys need to leave with us right now." JA at 673.
Spurlock was not at school on October 10. Euverard interviewed Spurlock on October 11, and Spurlock told Euverard that he signed the petition. Euverard asked Spurlock if he still felt that way, and Spurlock answered that he loved football. Euverard then asked Spurlock if he wanted to play football with Euverard as head coach. Spurlock said no, but that he wanted to play for Jefferson County. Euverard told Spurlock to get his stuff, and that he was no longer on the team. Players who signed the petition but apologized to Euverard and told him they wanted to play for him were allowed to remain on the team.
Plaintiffs filed suit on December 9, 2005. The district court denied Defendants' motion for summary judgment based on qualified immunity on August 22, 2006, holding that there was an issue of fact regarding whether the petition disrupted the team. Defendants timely appealed the denial to this Court.
A district court's denial of qualified immunity is reviewed de novo. Blake v. Wright, 179 F.3d 1003, 1007 (6th Cir.1999).
A denial of qualified immunity based on legal grounds is an appealable final decision within the meaning of 28 U.S.C. § 1291. Sample v. Bailey, 409 F.3d 689, 694 (6th Cir.2005). However, a denial of qualified immunity based on evidentiary issues is not an appealable decision. Id. at 695. Plaintiffs argue that there are contested evidentiary issues regarding the real reason why they were dismissed from the football team.
Plaintiffs do not deny, however, their participation in the petition in question. Nor do Plaintiffs Lowery, Giles, and Dooley dispute their insubordinate actions during the team meeting on October 10, 2005. The amount of constitutional protection due the petition is a legal question properly before the Court on interlocutory appeal.
A two-part test is used to determine if a government official is entitled to qualified immunity. First, the Court must determine if the official's conduct violated a constitutional right. If this question is answered in the affirmative, the Court must determine if the right was clearly established at the time of the violation. Garretson v. City of Madison Heights, 407 F.3d 789, 796 (6th Cir.2005). Thus, the Court must first determine if Plaintiffs' First Amendment rights were violated when they were dismissed from the football team.
In the 1986 movie Hoosiers, Gene Hackman plays Norman Dale, the new basketball coach at a small Indiana high school. On the first day of practice Dale makes an introductory speech to the players. All of the players attentively listen to Dale except two, who are talking to each other. Dale notices the two players talking, and the following dialogue ensues:
Dale: Basketball is a voluntary activity. It's not a requirement. If any of you feel you don't want to be on the team, feel free to leave right now. Did you hear what I just said?
Dale: Yes, you.
Player: Sure, I'm just kinda curious to know when we start.
Dale: We start when I say so.
Player: Ok, would you kinda let me know, `cause I'm kinda getting tired of standing.
Dale: Alright. Out. Out of here. Right now.
The two players then leave the gym. Shortly thereafter one of the players returns with his father, who informs Dale that his son has something to say. The player apologizes to Dale and asks for a second chance. Dale accepts the apology and tells the player to suit up. The other player is not heard from again.
The movie takes place in the 1950s, before the Supreme Court case of Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), which held that the First Amendment does not stop "at the schoolhouse gate." Id. at 507, 89 S.Ct. 733. 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?
The contour of First Amendment protection given to speech depends upon the context. For example, it is beyond question that citizens have a First Amendment right to criticize the government's military policy. However, does this mean that an enlisted soldier has a First Amendment right to be disrespectful towards his commanding officer? To ask that question is to answer it. Likewise, citizens have a First Amendment right to criticize a particular government official, but that right is circumscribed when the citizen works for the official. See Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).
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