Sports logos and mascots using terms or images that may be offensive to Native Americans, African Americans, or other racial and ethnic groups are generally protected by the First Amendment.

Many schools and their sports teams—as well as some professional teams—have adopted Native American terms or images. In recent years, some Native Americans began to view these designations as derogatory, demanding that the references to them be eliminated. In the period from 1970 until about 2000,some 600 of 2,500 institutions using such designations made changes (Blankenship 2001: 455). Other schools continue to use designations, such as “The Rebels” (sometimes accompanied by Confederate flags), that may cause discomfort among African Americans or others.

The free speech clause of the First Amendment appears to support the right of teams to choose any designations, short of “fighting words,” they want. But the amendment does not shield teams from the adverse publicity that such names might generate, nor does it necessarily prevent groups such as the National Collegiate Athletic Association (NCAA) from enforcing nongovernmental sanctions.

In 1992 a Cheyenne, Susan Harjo, filed a complaint with the federal Trademark Trial and Appeal Board that sought to withdraw the trademark of the Washington Redskins as a violation of Section 2(a) of the Lanham Act, the U.S. trademark law. The complaint suggested that the board could refuse to register trademarks that consisted of “scandalous matter” or that brought national symbols “in contempt, or disrepute.” Despite Harjo’s initial success before the board, the District of Columbia Circuit Court of Appeals later ruled in Pro Football, Inc. v. Harjo (D.C.Cir.2005) that lower courts should consider whether Harjo’s initial claim was barred by the equitable doctrine of laches—that is, because of the delay in bringing up the matter, Harjo was no longer entitled to her claim.

In 2004 California adopted the Racial Mascots Act, which sought to ban use of the name “Redskins” for public school athletic teams. Although Gov. Arnold Schwarzenegger vetoed the law, at least one commentator believes the law may have been constitutional as applied to public schools, where pedagogical considerations might outweigh the desire of students for such names—if such sentiment existed (Brock 2005).

At the college level, in 2005 the National Collegiate Athletic Association ruled that teams at eighteen colleges and universities using Native American mascots would be ineligible to participate in NCAA postseason events. It later reversed its judgments for the Central Michigan University Chippewas, Florida State University Seminoles, Mississippi College Chocktaws, and University of Utah Utes, because they had received support from the tribes after whom they were named. Five other schools became eligible for postseason play after they changed their teams’ names. Officials at the University of Illinois at Urbana-Champaign won an appeal to the NCAA to keep using the names “Illini” and “Fighting Illini,” but in 2007 it dropped the use of its Chief Illiniwek mascot, whose “dance”was apparently not authentic to the tribe being depicted. In an earlier case involving the university, Crue v. Aiken (7th Cir. 2004), the Seventh Circuit Court of Appeals had upheld a decision holding as impermissible the university chancellor’s attempt to avoid NCAA sanctions by forbidding faculty members unhappy about what they viewed as the university’s use of racially demeaning stereotypes of Native Americans from communicating with prospective student athletes on the matter. The court found the chancellor’s actions to be an overly broad, content-based prior restraint.

Some observers believe the NCAA’s willingness to allow some Native American names while disapproving others could lead to challenges under the Constitution’s equal protection clause (Wolverton 2006). Alternatively, courts could find that the NCAA did not follow designated processes or decide that NCAA actions were constitutional because they did not involve government action. The Supreme Court may clarify this issue in Lee v. Tam (2017).

 

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