By Gary Chester, Senior Writer
Do public prayers and high school football mix? The U.S. Supreme Court responded affirmatively in Kennedy v. Bremerton School District (2022), ruling that a school district had wrongly terminated a coach for conducting post-game prayers at the 50-yard line at a public high school. The 11th Circuit considered the same issue under different facts in Cambridge Christian Sch., Inc. v. Fla. High Sch. Ath. Ass’n, Inc., 2024 U.S. App. LEXIS 22302 (11th Cir. 2024). In this case, a Christian school sought to deliver a pregame prayer over the public address system at a high school football championship game. The governing athletic association denied the request.
A First Amendment Dilemma at the Citrus Bowl
The Florida High School Athletic Association (FHSAA) is a state actor with the statutory authority to govern some aspects of high school sports in Florida. Cambridge Christian is a private Christian school in Tampa, Florida. In 2015, Cambridge Christian reached the FHSAA championship football game, where the FHSAA denied its request to deliver a pregame prayer over the stadium’s PA system. Cambridge Christian filed an action in federal court against the FHSAA asserting violations of its rights under the Free Speech and Free Exercise Clauses of the U.S. and Florida Constitutions.
The trial court granted the FHSAA’s motion to dismiss, but the Eleventh Circuit Court of Appeals reversed and remanded, holding that the school had “plausibly alleged enough to enter the courtroom and be heard.” Following discovery, the trial court granted summary judgment to the FHSAA, and the school appealed.
Cambridge Christian serves students in pre-kindergarten through twelfth grades. Religion is central to the school’s mission, and each school day begins with a prayer broadcast over the intercom. Board meetings, concerts, football games, and other events begin with communal prayer because it is part of the school’s spiritual tradition and stimulates the spiritual growth of the students.
The FHSAA organizes and regulates the high school football regular season and playoff games for its member schools. Cambridge Christian has been a member of the FHSAA since 1989. The FHSAA has bylaws and administrative policies and procedures that govern its events, and a manual that specifically governs state championship football games. From 2007 to 2018, the FHSAA arranged for the football championship games to be held at the Citrus Bowl in Orlando. The Citrus Bowl is a public stadium built in 1936 as a project of President Franklin D. Roosevelt’s Works Progress Administration. It is currently known as Camping World Stadium.
The FHSAA creates scripts for the PA announcers to read at championship games. PA announcers must follow the scripts for promotional announcements and advertisements, player introductions, penalties, player substitutions, awards ceremonies, and other game-related information. In 2012, two Christian schools played in the Class 2A state championship game and a representative for one of the schools delivered a pregame religious prayer over the PA system. This was the only example of a school representative delivering a pregame message, religious or otherwise, over the PA system at a FHSAA championship football game.
On December 4, 2015, Cambridge Christian played against University Christian in the Class 2A state championship game at the Citrus Bowl. The FHSAA prepared the PA script for the game. Both schools requested permission to deliver a prayer over the PA prior to the game, but the FHSAA refused. The FHSAA explained that the Citrus Bowl is a public facility and the FHSAA is legally a “state actor,” so allowing prayer over the loudspeaker would subject the FHSAA to “tremendous legal entanglements.”
The FHSAA suggested that the two schools gather as teams to pray before the game, and they did so at midfield. They also prayed on the field following the game. The prayers were not broadcast on the PA system. It should be noted that the FHSAA did not have a rule prohibiting Christian schools from broadcasting prayers at their home fields in the earlier rounds of the playoffs.
In 2016, Cambridge Christian filed a federal action seeking an injunction against the FHSAA’s prayer ban at state championship football games, alleging that the ban violated the schools’ First Amendment rights. On appeal, the Eleventh Circuit considered issues of standing, mootness, and nominal damages.
Did Cambridge Christian Have Standing to Sue?
Plaintiffs seeking an injunction to prevent future injury must demonstrate that the defendant’s allegedly wrongful behavior will likely continue, and that the “threatened injury is certainly impending.” They must also show a substantial likelihood of future injury; the controversy cannot be conjectural, hypothetical, or contingent—it must be real and immediate.
The Eleventh Circuit found that while the school did not need to demonstrate that future harm is certain, it needed to show that future injury is “certainly impending.” Cambridge Christian could not meet this burden. The court explained: “Here’s the problem with Cambridge Christian’s position. Its football team has not returned to the FHSAA state championship since 2015. In fact, 2015 is the only year the team has ever made it to the state championship since the school started its football program in 2003. Only once in two decades … there’s nothing to suggest that the team’s participation in a future football state championship is imminent or even likely.”
The court stated that the possible violation of rights in the 2015 championship game “presumably afford[s] [the school] standing to claim damages against the FHSAA…” However, a possible violation in the past does not equate to a real and immediate threat that it would suffer the same injury in the future.
The Court Holds that the Case is Moot
A case is moot when it “no longer presents a live controversy with respect to which the court can give meaningful relief.” Here, the Eleventh Circuit found that Cambridge Christian’s claims were moot because Florida adopted a new law in 2023 which required the FHSAA to adopt policies that provide each school participating in a high school championship contest under its direction to make brief opening remarks. Pursuant to Fla. Stat. § 1006.185, the FHSAA adopted a policy allowing the participating schools to make opening remarks not to exceed two minutes in length prior to championship games.
When a government defendant has rescinded a challenged policy, the burden of proof shifts to the plaintiff to present evidence that its challenge has not been mooted by that repeal. The plaintiff must show a “reasonable expectation” or a “substantial likelihood” that the government defendant will reverse its course and reinstate the repealed policy if the lawsuit is terminated.
The school argued that since the FHSAA has not repudiated its Establishment Clause position, it could still decide that pregame prayer over the PA system violates the First Amendment. The FHSAA pointed out that the circumstances have changed so that allowing pregame prayer over the PA would no longer violate the Establishment Clause. The court found that the FHSAA changed its policy to comply with the new Florida law and not to “manipulate our jurisdiction.”
The Court Considers Nominal Damages
Although the court lacked jurisdiction to consider Cambridge Christian’s claims for declaratory and injunctive relief, the court could properly consider its claims for nominal damages related to alleged past constitutional violations. The FHSAA argued that the school had forfeited its claim for nominal damages by not raising them in the lower court, but the Eleventh Circuit disagreed, stating: “Nominal damages are ‘require[d] … upon proof of infringement of a fundamental First Amendment liberty.’”
In considering the merits of the issue, the court noted that the Free Speech Clause of the First Amendment “works as a shield to protect private persons from encroachments by the government on their right to speak freely, not as a sword to compel the government to speak for them.” Were the pregame announcements at championship football games private or public speech? The court analyzed three factors: (1) the history of the speech; (2) whether the state appeared to endorse the speech; and (3) whether the FHSAA controlled the speech.
The court found that the history and tradition of the pregame PA messages indicated the speech was public in nature. The FHSAA traditionally scripted pregame announcements; the only example of any private speaker using the PA system for a pregame message was when the principal of Dade Christian led the community in prayer before the 2012 title game. “One instance does not a history make,” the court stated.
The nature of the pregame messages weighed towards finding the speech to be endorsed by the government. The court emphasized that even the commercial advertisements in the FHSAA script “were conveyed by a neutral announcer over a government-owned PA system throughout the course of a government-organized event, all made on behalf of ‘corporate partners’ of the FHSAA.” The court concluded that the spectators at the game would reasonably believe the government endorses the pregame speech over the PA system at the state championship game.
Finally, it was clear that the government maintained “direct control over the messages conveyed” in the pregame announcements. The FHSAA scripted its own messages and had control over the messages of its sponsors through contracts with them. Since the pregame announcements were governmental speech rather than private speech, the school did not have a First Amendment right to interject prayer into the message.
Cambridge Christian also asserted a violation of the Free Exercise Clause of the First Amendment. The school argued that the FHSAA had impermissibly interfered with its religious practices. The court rejected this argument because the government is not liable for suppressing the free exercise of religion when it “restrains only its own expression.” Since the FHSAA was regulating its own speech, and not private expression, Cambridge Christian was not entitled to nominal damages.
The Eleventh Circuit granted summary judgment on September 3, 2024. A petition for a writ of certiorari to appeal to the U.S. Supreme Court must be filed no later than 90 days after final judgment, and it remains to be seen if Cambridge Christian will take this next step.
Analysis: Florida Governor Ron DeSantis made it clear when the Florida pregame speech statute was passed that its purpose was to permit pregame prayer. The law was made possible by the Supreme Court’s ruling in Kennedy v. Bremerton. However, there is a factual distinction between a pregame prayer on the field and one that is delivered to the entire audience over a PA system. Whether the latter is permitted under Kennedy is an issue that the Eleventh Circuit did not address, and it would likely take an action filed by an organization opposed to public prayer for a court to determine that issue.
