Parents Have a First Amendment Right to Be Obnoxious at School Games
You've heard of Dance Moms, but what about Softball Dads? Many parents get a great deal of fulfillment by being involved in their kids' extracurriculars. But there's a fine line between healthy parental support and living vicariously through the accomplishments of one's children — and it's not uncommon for parents to get a little tooinvolved.
At one public high school in Tennessee, a student on the girls' softball team had a father who was – well, let's just say that he had a lot of opinions and wasn't afraid to make them known. When he ticked off the team's coach because his daughter got benched, he in turn got benched from watching her games. And then he took it to the bench. We sum up for you what turned out to be a rather unexpected case over the First Amendment and qualified immunity.
Softball Dad Disputes Coaching Decisions
Randall McElhaney: proud Tennessee dad of a daughter on the high school softball team, and a season ticket holder for her games, with reserved seats displaying his name. But maybe he was a little too proud? When his daughter got benched, McElhaney took matters into his own hands. He sent several text messages to the softball coach comparing his daughter's record (which he describes as impeccable) to other girls on the team, whom he criticized. He asserted that other players should have been benched over his daughter.
The coach held his ground and eventually forwarded the texts to the school principal because he was concerned about McElhaney's behavior. The principal agreed that the behavior and texts were inappropriate, so he banned McElhaney from a week's worth of softball games. McElhaney's appeal to the school district officials fell on deaf ears, so he decided not to honor the suspension. He attended his daughter's next game, without any disruption, but was still asked to leave.
Then, McElhaney took the matter to the courts. The outraged father brought a civil rights action against the coach, the principal, and various other school administrators. His lawsuit draws on multiple intersecting legal doctrines, so we'll try to parse them out one at a time.
Does School Have Qualified Immunity?
At the threshold, McElhaney filed what's known as a "1983 complaint." This type of civil action is named after a notable piece of federal law, the Civil Rights Act of 1871 (the name comes not from the year, but the fact that it was codified at 42 U.S.C. § 1983).
More colloquially called the "Ku Klux Clan Act," this set of laws was originally responding to racial terrorism perpetrated in large part by the KKK. In later years and through the present, it has been used much more expansively to enforce civil rights generally. Section 1983 has been invoked many times in important cases, including ones you might recognize such as Rodney King's case against the LAPD officers who brutally beat him. In general, 1983 complaints are used to hold state and local government officials (such as policemen, or, in this case, school officials) accountable.
But as you might remember from the various incidents of police brutality plaguing the nation in recent years, there's a special hurdle to get over when suing a government official: qualified immunity.
You can get a short and sweet summary of qualified immunity by listening to our podcast episode on the topic.
This is a tough hurdle to get over because someone trying to sue the school officials would have to show two things: that they had a "clearly established right," and that the official violated that right. The Sixth Circuit Court of Appeals was called on to answer the first prong: Did the dad have a clearly established right under the Constitution?
Dad Has a 'Clearly Established Right'
In sum, McElhaney is suing the defendants for violating his constitutional right not to be subjected to retaliation for engaging in protected free speech under the First Amendment. The First Amendment not only guarantees the freedom of [most] speech but bars retaliation for such speech. But do McElhaney's actions — expressing his opinion to the coach criticizing his coaching — fall into the type of "speech" that is protected? There was no prior case covering this scenario, so, as courts do, the Sixth Circuit looked to what they had. From analyzing earlier cases, the court answered with a "yes."
The court quoted a famous Supreme Court case called Texas v. Johnson, which established the right to burn the American flag: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." SCOTUS has long held that almost all speech is protected under the First Amendment, except in a few limited areas such as obscenity, fraud, defamation, and speech furthering criminal conduct. McElhaney's speech did not, of course, fall into any of the exceptions (his texts might have been annoying and a little aggressive, but they were a far cry from, say, "fighting words").
The court further pointed out that criticizing public officials falls squarely within protected speech, as another famous SCOTUS case called New York Times v. Sullivan established. In the judges' opinion, this is all that McElhaney was doing: expressing disagreement about a school employee who interacted with his child.
School Disruption: Not a Defense
The school officials countered that the First Amendment doesn't protect speech that disrupts school functions such as the coaching of an athletic team. And in previous cases, courts have indeed balanced individuals' free speech protection against the interests of school officials to maintain their programs.
For example, in an earlier case, the Sixth Circuit ruled that high school football players who protested against their coach and were then kicked off the team did not have a valid claim under the First Amendment because the coach "legitimately feared that the speech would disrupt the team's educational goals." Of course, it's not enough to fear possible or hypothetical disruption. Yet another SCOTUS case held that when students during the Vietnam War wore black armbands to school in protest (an action that was considered "pure speech"), school officials couldn't restrict this action without showing that it would "materially and substantially interfere" with the operation of the school.
But in prior cases, the questionable conduct was that of students, not their parents. The court said that this was an important distinction, since parents have a different relationship to school activities than their children do. While a school acts as a temporary guardian to students left in its care, care, it is not in the same position concerning parents who attend school activities.
So basically, McElhaney had a right to be a helicopter parent in the way he was, even if it annoyed the coach.
This dedicated dad can't celebrate just yet; he still has to get over the second prong of the school's qualified immunity defense. He'll have to show that the school officials violated his protected right.
Now, it's up to the trial court to determine if what the school did could be considered "retaliation." Since retaliation against free speech is unconstitutional, McElhaney could potentially recover civil damages from the school officials under his 1983 claim. Even if he doesn't, though, it seems schools across the country will still be left dealing with drama-queen dads and micromanaging moms for some time to come.
It should be noted that school officials are not left powerless against the First Amendment even when it comes to dealing with difficult parents. They are allowed to make and enforce reasonable, "viewpoint-neutral" rules about where parents can show up and what they can do. For example, the Upperman softball team already bans parents from attending practices or interacting with players during games — and those rules are all well and good. But what was problematic here was that the school potentially took disciplinary actions that weren't in the books against a parent based on the content of his speech.
So, what's settled is that MCElhaney had the right to attend games even after criticizing the coach. Unfortunately for his daughter, she doesn't have a civil claim against him for being an embarrassing dad.
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