Cambridge Christian Sch., Inc. v. Fla. High Sch. Athletic Ass'n, Inc.

Decision Date13 November 2019
Docket NumberNo. 17-12802,17-12802
Citation942 F.3d 1215
Parties CAMBRIDGE CHRISTIAN SCHOOL, INC., Plaintiff - Appellant, v. FLORIDA HIGH SCHOOL ATHLETIC ASSOCIATION, INC., Defendant - Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Eliot Pedrosa, Stephanie Peral, Greenberg Traurig, PA, Adam Michael Foslid, Stumphauzer Foslid Sloman Ross & Kolaya, PLLC, MIAMI, FL, Roger L. Byron, Jeremiah Grant Dys, Hiram S. Sasser, First Liberty Institute, PLANO, TX, for Plaintiff - Appellant.

Judith M. Mercier, Jamie Billotte Moses, Robin Michelle Nauman, Holland & Knight, LLP, ORLANDO, FL, Laurie Webb Daniel, Holland & Knight, LLP, ATLANTA, GA, Leonard E. Ireland, Jr., Clayton Johnston, PA, GAINESVILLE, FL, for Defendant - Appellee.

Jay Alan Sekulow, American Center for Law & Justice, WASHINGTON, DC, for Amici Curiae AMERICAN CENTER FOR LAW AND JUSTICE, ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL.

Joseph C. Sharp, Polsinelli, PC, ATLANTA, GA, for Amici Curiae JOSEPH C. SHARP, NATIONAL FEDERATION OF STATE HIGH SCHOOL ASSOCIATIONS.

Richard Brian Katskee, Americans United for Separation of Church and State, WASHINGTON, DC, for Amici Curiae FLORIDA HIGH SCHOOL ATHLETIC ASSOCIATION, INC., AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE.

Rebecca S. Markert, Freedom from Religion Foundation, MADISON, WI, for Amici Curiae FREEDOM FROM RELIGION FOUNDATION, INC., FLORIDA FREETHOUGHT COMMUNITY.

Before TJOFLAT, MARCUS and NEWSOM, Circuit Judges.

MARCUS, Circuit Judge:

At the end of the 2015 high school football season, Cambridge Christian School and University Christian School faced off in the Division 2A State Championship Game, supervised and regulated by the Florida High School Athletic Association ("FHSAA"), a state actor. The two schools, both Christian institutions, asked the FHSAA for permission to conduct a joint prayer over the loudspeaker before kickoff, as they each typically did before all other games. The schools presented this request and the practice of communal prayer more generally as being tied to their religious missions and as being very important to the members of their communities. The FHSAA denied the request, citing the Supreme Court's Establishment Clause precedent and the principle of "separation of church and state."

Cambridge Christian then brought this lawsuit in federal district court, raising a variety of claims, primarily arising under the Free Speech and Free Exercise Clauses of the United States and Florida Constitutions. The school alleged that its right to freedom of speech was violated when the FHSAA denied access to the loudspeaker for its proposed religious speech while at the same time allowing secular messages to be transmitted. It also claimed that its right to Free Exercise was similarly violated -- communal prayer was integral to its spiritual tradition and practice, and, without access to the loudspeaker system, the school was unable to unite players and spectators in communal prayer before the last and most important game of the season. Cambridge Christian asked the district court for declaratory and injunctive relief as well as damages.

The trial court dismissed the entirety of Cambridge Christian's complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For starters, it concluded, on the Free Speech claims, that all speech over the loudspeaker was government speech and therefore that the school enjoyed no expressive freedoms in that medium. In the alternative, the court determined that the loudspeaker was a nonpublic forum and that Cambridge Christian was not entitled to access it. As for the Free Exercise Clauses, the court held that the school's free exercise rights had not been implicated when the FHSAA denied access to the loudspeaker because the teams were still allowed to pray together at the center of the football field, albeit without the aid of a loudspeaker system. Finally, the trial court denied declaratory relief under the Establishment Clauses on the ground that the controversy was more properly framed under the other clauses.

As we see it, the district court was too quick to dismiss all of Cambridge Christian's claims out of hand. Taking the complaint in a light most favorable to the plaintiff, as we must at this stage in the proceedings, the schools' claims for relief under the Free Speech and Free Exercise Clauses have been adequately and plausibly pled. There are too many open factual questions for us to say with confidence that the allegations cannot be proven as a matter of law. The question of whether all speech over the microphone was government speech is a heavily fact-intensive one that looks at the history of the government's use of the medium for communicative purposes, the implication of government endorsement of messages carried over that medium, and the degree of government control over those messages. Here, the history factor weighs against finding government speech and the control factor is indeterminate, so, based on this limited record, we find it plausible that the multitude of messages delivered over the loudspeaker should be viewed as private, not government, speech. And while we agree with the district court that the loudspeaker was a nonpublic forum, we conclude that Cambridge Christian has plausibly alleged that it was arbitrarily and haphazardly denied access to the forum in violation of the First Amendment. Likewise, we cannot say, again drawing all inferences in favor of the appellant, that in denying communal prayer over the loudspeaker, the FHSAA did not infringe on Cambridge Christian's free exercise of religion.

We, therefore, reverse the district court's decision in part. The lower court was too quick to pull the trigger insofar as it dismissed the appellants' free speech and free exercise claims. We cannot say whether these claims will ultimately succeed, but Cambridge Christian has plausibly alleged enough to enter the courtroom and be heard.

We do agree with the district court, however, that Cambridge Christian has failed to plead a "substantial burden" under the Florida Religious Free Restoration Act (FRFRA) because it has not alleged that the FHSAA forbade it from engaging in conduct that its religion mandates. Thus, we affirm the district court's dismissal of the FRFRA claim. We also affirm the district court's decision in part, insofar as it rejected the school's request for declaratory relief under the Establishment Clauses.

I.
A.

Cambridge Christian School is a private Christian school in Tampa, Florida, running from preschool through twelfth grade. Like many private schools, Cambridge Christian's religious mission is an integral part of its identity. The school's overall religious mission is stated this way: "To glorify God in all that [it does]; to demonstrate excellence at every level of academic, athletic, and artistic involvement; to develop strength of character; and to serve the local and global community."

Prayer is especially important to Cambridge Christian; it is a basic part of many school activities, including its class lectures and meals, and it has been fully incorporated into the mission of the school's athletic department. The athletic department defines its mission this way: "to glorify Christ in every aspect of [its] athletic endeavors while using the platform of athletics to: Teach the Principles of Winning; Exemplify Christian Morals and Values in [its] Community; Achieve Maximum Physical, Moral and Spiritual Character Development; and Mentor Young Men and Women to Deeper Walk with Jesus." In service of this mission, Cambridge Christian has a "long-standing tradition" of beginning all sporting events with an opening prayer, led by a student, parent, or school employee, delivered using the loudspeaker at home events "and at away games when possible." The school would "not pre-select or pre-approve an official prayer" or "provide a script or any direction ...; rather, the speakers chose and delivered their messages themselves."

Cambridge Christian's football team played in Division 2A, which was supervised and regulated by the Florida High School Athletic Association. The FHSAA is "the governing nonprofit organization of Florida high school athletics." The FHSAA was so designated by the Florida legislature in 1997, and, because of the statutory delegation of authority, is a state actor. Fla. Stat. § 1006.20 (2016). It includes over 800 member high schools throughout Florida, many of which are private and religious in nature. Notably for our purposes, the FHSAA organizes and oversees championship games for all Florida high school athletics divisions.

The complaint states that Cambridge Christian fielded a successful football team in 2015; they won all nine of their regular season games and made it to the Division 2A playoffs. That season, Cambridge Christian claims that it had prayed over the loudspeaker at "each home regular season game as well as [at] away games, whenever possible." In three earlier rounds of the playoffs, Cambridge Christian was the home team, and hosted the games at Skyway Park, a public facility in Tampa owned by Hillsborough County. Before each of these games, Cambridge Christian apparently was allowed to pray over the loudspeaker at Skyway Park. At the end of the season, Cambridge Christian's football team was playing in the Division 2A Florida state football championship at Camping World Stadium (formerly known as the Citrus Bowl) in Orlando. The stadium has a regular capacity of 41,000 for football games. Cambridge Christian's opponent in the championship was University Christian School, "a school with a similar mission and traditions involving prayer."

During a December 1, 2015 conference call with the FHSAA -- three days before the big game -- representatives of Cambridge Christian and University Christian asked to use the loudspeaker at the stadium to lead attendees in a pregame prayer. University Christian explained that it had been allowed by the FHSAA to use the...

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