A Christian school in Florida denied the ability to have prayer over the loudspeaker before a football game had its First Amendment lawsuit reinstated by a federal appeals court. The appeals court reasoned that the lower court was “too quick to pull the trigger” and dismiss the lawsuit.
At the end of the 2015 football season, Cambridge Christian School, a Tampa-based private school, faced University Christian School in the playoffs. The schools submitted a joint request to the Florida High School Athletic Association (FHSAA) for permission to conduct a joint prayer over the loudspeaker before the football game.
The FHSAA denied the request, citing concerns over the Establishment Clause of the First Amendment, which provides for a degree of separation between church and state. The FHSAA relied on the U.S. Supreme Court’s decision in Santa Fe Independent School District v. Doe (2000), in which the Court ruled that prayer over the loudspeaker at a Texas high school football game violated the Establishment Clause.
Cambridge Christian then filed a lawsuit in federal district court in September 2016, alleging that the FHSAA had violated its rights under the Free Speech and Free Exercise Clauses of the First Amendment. The school contended that the FHSAA committed viewpoint discrimination by allowing secular messages over the loudspeaker but not religious messages.
A federal district court dismissed the lawsuit, finding that the proposed forms were a form of government speech and that the school had legitimate concerns under the Establishment Clause.
On appeal, a three-judge panel of the 11th U.S. Circuit Court of Appeals reversed and reinstated the lawsuit in Cambridge Christian School v. Florida High School Athletic Association.
Free Speech Claim and the Government Speech Doctrine
The FHSAA argued that because prayers over the loudspeaker are government speech instead of private speech, the school’s free-speech argument must fail. Under the government speech doctrine, if speech is considered government speech, a free-speech argument falls by the wayside.
The appeals court recognized that if the prayers are considered government speech, the free-speech claim fails.
However, the appeals court held that it was unclear whether the prayers fell within the ambit of government speech. The panel applied a multi-factor test to determine whether the prayers are government or private speech. These factors included history and tradition, endorsement, and control.
Under history and tradition, the appeals court reasoned that this factor cuts in favor of the school and a finding of private speech, because “the allegations in the complaint strongly suggest that the state has allowed the dissemination of prayer over the public-address system in the past.”
The endorsement factor asks whether the public likely would view the speech as endorsed by the government. The appeals court reasoned that this factor cuts in favor of the FHSAA and a finding of government speech. The appeals court noted that the state organized the game and “likely would have been seen as endorsing any communication over the loudspeaker because, although the game was between two Christian schools, it was the Championship of Division 2A, a class of a league organized by the FHSAA.”
With respect to the control issue, the appeals court said the record in the case was not clear. For example, the appeals court pointed out that “the Administrative Procedures do not tell us whether anyone other than the FHSAA announcer spoke over the loudspeaker.”
The appeals court concluded on this issue: “The long and short of it is that we simply do not have enough information to say with any confidence that, if everything in the complaint is true, speech disseminated over the public-address system was and would have been government speech as a matter of law.”
The appeals court then reasoned that, if not all of the speech over the loudspeakers was government speech, then the school’s viewpoint discrimination claim must be allowed to proceed. The appeals court reasoned that the loudspeaker was a nonpublic forum, but the rule in First Amendment law is that even in a nonpublic forum, a governmental entity must enact rules that are reasonable and not discriminatory based on content or viewpoint. The appeals court determined that the school plausibly alleged that the FHSAA restricted the prayer because of its religious content.
The appeals court expressed concern that the FHSAA appeared to be inconsistent in its approach to the prayers. Apparently, the FHSAA had allowed the prayers some in the past but denied the request by Cambridge Christian and its football opponent. The appeals court reasoned that this inconsistency “is sufficiently troubling to allow this free speech case to progress to discovery.”
Free Exercise Claim
The 11th Circuit panel also reinstated the school’s free exercise clause claim. Under the Free Exercise Clause, the government cannot punish or discriminate against those who sincerely exercise their religious beliefs by burdening those beliefs. In other words, the government may not impermissibly burden a sincerely held religious belief.
The appeals court determined that the school had pled adequately in its complaint that the denial of the prayer over the loudspeaker negatively impacted the school’s sincere religious beliefs in the power of communal prayer. The appeals court first reasoned that the school showed that its beliefs in communal prayer were sincerely held. Next on the burden part, the appeals court panel explained: “Because the school was denied prayer over the loudspeaker, it was unable to engage in a communal prayer that unified the team and the spectators.”
The FHSAA argued that the school’s free-exercise rights were not burdened, because the school’s players could still pray on the field at the 50-yard line. However, the appeals court determined that the school plausibly had alleged a free-exercise violation based on the unifying aspect of communal prayer over the loudspeaker.
David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).