By Landon Huffman, Ph.D.
The intersection of faith and high school sport once again occurred in the public square, and administrators on each side are at odds over their Constitutional protections.
At the conclusion of the 2015 high school football season, Cambridge Christian School (CCS) of Tampa met University Christian School (UCS) of Jacksonville at the Citrus Bowl (currently known as Camping World Stadium) in Orlando to play for the Florida high school football Class 2A state championship. Although these two institutions are private Christian high schools, they compete within the Florida High School Athletic Association (FHSAA), arguably a state actor. As was their custom, the schools requested to pray over the loudspeaker during the pre-game activities. The “FHSAA denied the request, citing the Supreme Court’s Establishment Clause precedent and the principle of ‘separation of church and state.’” [2] Subsequently, CCS filed suit against the FHSAA claiming their rights to free speech and free exercise were violated requesting injunctive relief “requiring the FHSAA to implement a content-neutral policy for use of the Stadium loudspeaker that does not discriminate against religious speech.” [3] Below is a brief timeline of the relevant events that have transpired from Fall 2015 to Fall 2019:
Brief Timeline
Dec. 1, 2015 — Representatives from the FHSAA, finalist schools in each division, Central Florida Sports Commission hold a conference call to discuss forthcoming championship game day policies and procedures.[4] During this conference call, representatives from CCS and UCS request access to the public address speaker to say a joint pre-game prayer.
Dec. 2, 2015 — Executive director of FHSAA, Dr. Roger Dearing, replies to email requests from CCS and indicates a pre-game prayer will not be allowed over the public address system.[5]
Dec. 4, 2015 — FHSAA Class 2A state championship football game.
Dec. 7, 2015 — FHSAA executive director exchanges additional emails reiterating the rationale for FHSAA’s decision.[6]
Jan. 26, 2016 — CCS’ legal team sends a letter to FHSAA arguing FHSAA violated CCS’s rights as a religious institution.[7]
Jan. 27, 2016 — FHSAA posts a press release on its website reiterating its stance on prayer over the public address system.[8]
July 13, 2016 — CCS meets with FHSAA to discuss terms of a settlement, which include the FHSAA adopting a policy that would be mutually beneficial and legally-permissible.[9]
Sept. 26, 2016 — CCS’ legal team and community members appear at a FHSAA Board of Directors meeting and urge the FHSAA to adopt a policy that would respect the religious freedom of students across the state of Florida.
Sept. 27, 2016 — FHSAA declines to take action and CCS legal team files a lawsuit against the FHSAA.[10]
Feb. 3, 2017 — A Tampa district magistrate issues a “report and recommendation” stating the schools cannot pray over the public address system at the Citrus Bowl stadium (currently Camping World Stadium).[11]
Oct. 20, 2017 — Attorneys file a brief to the U.S. Court of Appeals for the Eleventh Circuit.[12]
September 2018 — Oral arguments at the Eleventh Circuit occur.
November 2019 — Eleventh Circuit rules that CCS arguments have merit and should proceed.[13]
This is a timely case to visit because in November 2019 an appeals court issued a thorough 70-page opinion in which it reversed the district court’s decision in part, writing that 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.”[14]
As a reminder to the readership, the lens through which I write is that of athletic administration, so I lack the legal expertise of much of the audience. While I cannot confidently speak to the extent of Constitutional infractions and/or First Amendment protections, I am captivated by the ripple effect these cases have on the athletic community. Two of the more intriguing questions I’ve been contemplating include:
To what extent should an individual(s) and/or faith-based organization expect to be accommodated and/or Constitutionally-protected when desiring to exercise their private citizen rights (i.e., Freedom of Expression) within the public sphere of athletics (i.e., Establishment Clause)?
What are the best practices for state actors, such as the FHSAA, to accommodate and/or protect citizen’s and/or organization’s Free Exercise rights without over-stepping and violating Establishment Clause protections?
Walking a Mile in Their Shoes: FHSAA’s Rationale
From a practical perspective, it is helpful to review the facts of the case and consider if the FHSAA acted reasonably and prudent in its decision to deny access to the loudspeaker for a pre-game prayer at the state championship football game. Based on the email correspondence from the FHSAA executive director as well as the press release following a formal complaint from CCS’s legal team, it appears that the FHSAA made a good-faith effort (no pun intended) to accommodate the requests from CCS and UCS within legal parameters.
The FHSAA concluded it could not comply with the schools’ wish for a public pre-game prayer over the public address because (1) “the facility is a public facility, predominantly paid for with public tax dollars, mak[ing] the facility ‘off limits’ under federal guidelines and precedent court cases,” and (2) “…the FHSAA (host and coordinator of the event) is legally a ‘State Actor,’ we cannot legally permit or grant permission for such an activity.”[15] He concluded his email stating “I totally understand the desire, and why your request is made. However, for me to grant the wish could subject this Association to tremendous legal entanglements.”[16] Ironically, to deny this request also subjected the FHSAA to legal entanglements.
Following the game, CCS and its legal team sent a formal complaint to the FHSAA, and the FHSAA doubled-down by issuing a press release, which included the following excerpt:
“The FHSAA has always accommodated pre- and post-game on-field prayer opportunities for its member schools. In regard to the recent issue involving two private Christian high school football teams at the Florida High School Football State Championships, here are the facts: “The FHSAA presented alternative options for team prayers, including on-field prayer, in lieu of the publicly lead prayer, as requested, over the PA system.
“Representatives of each participating school accepted the FHSAA’s alternative options to the initial request.
“Both teams participated in a personally led on-field organized prayer prior to and following the 2A State Championship game at The Citrus Bowl.
“The FHSAA, as host and coordinator of the event, is statutorily a ‘State Actor’, and according to state and federal law, cannot legally permit or grant permission for the requested activity over the PA system.”[17]
Overall, it appears the FHSAA operated within a legally-justifiable framework when making its decision. However, from an athletic administration perspective it appears there were a few areas the FHSAA could have emphasized as well as opportunities to clarify policies moving forward.
The Proverbial Double-Edged Sword
I applaud the FHSAA for being inclusive of private, faith-based schools being allowed to join their membership and compete for state championships alongside public schools (Article 2.7).[18] This creates its own array of eligibility, zoning, and/or recruiting challenges, but this approach to high school sport is rather unique. In a similar vein, the FHSAA appears to grant a fair amount of autonomy for its member schools to engage in some public faith-based practices (particularly when they are the home/host institution), including pre- and post-game on-field prayer, even at this FHSAA-sponsorship championship event in question! As you may imagine, this type of inclusivity and posture of accommodation presents itself as a double-edged sword in terms of granting permission for some faith-based practices while denying others.
From my perspective, it appears the FHSAA’s defense would have been strengthened by leaning on their game day operational manual for this unique FHSAA-sponsored event. As the host organization of a state championship game, the FHSAA has the privilege of structuring game day policies, procedures, and scripts. It seems prudent the FHSAA would only allow FHSAA officials to have access to the public address system, scoreboard, play clock, etc., thereby denying any request for P.A. access from outside entities. Rather than emphasize impermissibility of prayer on the basis of being a publicly-owned stadium and/or government-endorsed messaging, the rationale would simply be the P.A. system is only available to FHSAA officials. If this was the position of the FHSAA, perhaps CCS’s legal team could argue that refusing access to the P.A. is restricting free speech rather than CCS’s claim that the FHSAA is actively censoring faith-based messages, but that would be a difficult stance for CCS to prove.
But given the facts of the case as presented, here’s the rub.
At this state championship football game, the FHSAA granted special access for the schools’ cheerleading squads to use the P.A. system during the halftime entertainment without vetting the music and/or messaging. Attorneys for CCS latched-on to this fact in their lawsuit and are leveraging this perceived double-standard by the FHSAA, and rightfully so, albeit a technicality. If the FHSAA has stated policies, they are obligated to abide by those or else it is perceived as censoring some messages but not others.
Best Practices
This is certainly an unfortunate situation that the FHSAA will be tasked with defending in the coming months. In my estimation, the FHSAA doesn’t appear to be acting adversarial in this situation, but legally-speaking they surely hurt their case given this procedural faux-pas during the cheerleading halftime performance. Here are a few best practices from an athletic administration perspective based on this, and similar, cases:
Have written, publicly-available, legally-sound bylaws, policies, and procedures and adhere to them.
Educate prospective and current members regarding policies and procedures. In this instance, policies and procedures for game day differ between regular-season contests and post-season contests.
Invite regular and systematic opportunities for member institutions to offer feedback and/or proposed rule changes for bylaws, policies, and procedures to adapt to culturally-relevant situations.
Incorporate a moment of silence prior to athletic contests in which the FHSAA is the host organization. Furthermore, state actors can be advised that tolerating faith-based practices on state property, at state-sanctioned events, and/or under the supervision of a state actor does not improperly endorse it.[19]
Concluding Thoughts
As I’ve alluded to in previous analyses, it seems as if the reality of the day is that private faith-based schools who voluntarily join state-actor agencies may conditionally surrender some of their Constitutional rights. I agree that “No American should have to choose between their faith and their job,”[20], or in this case their faith and their sport. Nonetheless, athletic administrators at faith-based schools are wise to consider their “fit” as a member institution within any governing body, such as the FHSAA.
Similarly, school administrators at faith-based institutions must educate themselves and stakeholders regarding the legal rights and privileges, or lack thereof, they are afforded by joining any such secular governing body. For instance, when CCS voluntarily agreed to join the FHSAA, they voluntarily submitted themselves to the FHSAA’s bylaws, policies, and procedures. If CCS decides their convictions do not align with the values of the FHSAA, they are within their rights to withdraw from the FHSAA and operate independently, join another governing body, and/or create a governing body for like-minded institutions. These are difficult decisions that can be particularly challenging for administrators who desire faith integration to permeate all areas of their lives while competing alongside their neighbors, but these are the expectations that come with secular group membership — and the public sector may not be the best fit for certain faith-based organizations with deep convictions.
At the end of the day, it appears all parties are sincerely advocating for First Amendment rights and protections for their respective constituents. Continued dialogue is encouraged to ensure all entities involved are pursuing the best interests of their students, athletic teams, staff, member schools, and communities.
Landon Huffman, Ph.D. is an Associate Professor of Sport & Fitness Leadership as well as the Faculty Athletic Representative at Johnson University in Knoxville, TN. He is also an Affiliate Scholar with the Center for the Study of Sport & Religion at the University of Tennessee, Knoxville.
[1] Links to litigation documents can be found at https://firstliberty.org/cases/cambridge/#simple3 and https://www.fhsaa.org/sites/default/files/orig_uploads/gov/board/2016-17/Item%20I%20-%20Cambridge%20Christian%20School.pdf
[2] https://firstliberty.org/wp-content/uploads/2019/11/Cambridge_Eleventh.pdf
[3] https://firstliberty.org/wp-content/uploads/2016/10/Cambridge-Amended-Complaint.pdf
[4] https://firstliberty.org/wp-content/uploads/2016/10/Cambridge-Exhibit-B.pdf
[5] https://firstliberty.org/wp-content/uploads/2016/10/Cambridge-Exhibit-D.pdf
[6] https://firstliberty.org/wp-content/uploads/2016/10/Cambridge-Exhibit-E.pdf
[7] https://firstliberty.org/wp-content/uploads/2016/01/ccsdemandletter.pdf
[8] https://firstliberty.org/wp-content/uploads/2016/10/Cambridge-Exhibit-F.pdf
[9] https://www.fhsaa.org/sites/default/files/orig_uploads/gov/board/2016-17/Item%20I%20-%20Cambridge%20Christian%20School.pdf
[10] https://firstliberty.org/wp-content/uploads/2016/09/16-9-30-Motion-for-PI.pdf
[11] https://firstliberty.org/wp-content/uploads/2017/02/Report-and-Recommendation-from-District-Court-Magistrate-Cambridge-Christian-School-20170203.pdf
[12] https://firstliberty.org/wp-content/uploads/2017/10/17-10-20-CCS-Opening-Brief.pdf
[13] https://firstliberty.org/wp-content/uploads/2019/11/Cambridge_Eleventh.pdf
[14] https://firstliberty.org/wp-content/uploads/2019/11/Cambridge_Eleventh.pdf
[15] https://firstliberty.org/wp-content/uploads/2016/01/ccsemailFHSAA.pdf
[16] Ibid.
[17] https://firstliberty.org/wp-content/uploads/2016/10/Cambridge-Exhibit-F.pdf
[18] https://firstliberty.org/wp-content/uploads/2016/09/Exhibit-A.pdf
[19] Chandler v. Siegelman, 230 F.3d 1313, 1314 (2000)
[20] https://www.seattletimes.com/sports/high-school/praying-football-coach-joe-kennedy-sues-bremerton-school-district/
