By John E. Tyrrell and Sarah Polacek
On September 30, 2021, a United States District Court addressed the limitations on the First Amendment protections of a student’s rights to free speech at a school-sponsored event in Sasser v. Bd. of Regents, No. 1:20-cv-4022-SDG, 2021 U.S. Dist. LEXIS 188703 (N.D. Ga. Sept. 30, 2021). Judge Steven D. Grimberg ultimately dismissed the Plaintiff student’s Amended Complaint which alleged violations of his First Amendment rights.
On September 29, 2018, while attending a University of Georgia (UGA) football game, spectators filmed Plaintiff Jonathan A. Sasser, a student athlete on the UGA baseball team, using a racial slur directed to one of the student football players.
Sasser’s coach was notified of the incident the next day. Sasser admitted using the slur but contended the facts of the incident were “out of proportion.” After meeting with his coach and officials associated with Defendant University of Georgia Athletic Association (UGAA), Sasser was released indefinitely from the baseball team. Around the same time, Defendant Eryn Janyce Dawkins, director of Defendant University of Georgia Equal Opportunity Office (EOO) conducted an investigation and hearing into the matter, subsequently suspending Sasser for the remainder of the Fall 2018 semester.[1] Both Defendant Jere Wade Morehead, President of UGA, and Defendant the Board of Regents of the University System of Georgia (the Board) upheld the sanctions and Sasser’s removal from the baseball team.
Sasser filed suit on September 29, 2020 against UGA, UGAA, EOO, the Board, Morehead, and Dawkins, among others. In part, Sasser alleged that Defendants violated his First Amendment right to freedom of speech.[2] The Defendants filed motions to dismiss, arguing they were protected by “Eleventh Amendment, qualified, and/or quasi-judicial immunity” and that Sasser’s Amended Complaint failed to state a claim.[3]
A First Amendment retaliation claim requires a plaintiff to show he engaged in (1) constitutionally protected speech; (2) the government’s retaliatory conduct adversely affected the protected speech; and “a causal connection [exists] between the retaliatory action and the adverse effect on speech.”[4] Sasser argued that that his statement was constitutionally protected speech because he was not threatening or harassing anyone.
The Sasser court discussed two United States Supreme Court cases, Tinker[5] and Fraser[6], to determine the bounds of Sasser’s rights while on university grounds. The Sasser Court found that Sasser’s conduct was more similar to the conduct at issue in Fraser, where the court found “that it was within a school district’s authority to discipline a student for making lewd and indecent comments during an assembly attended by approximately 600 other students.”[7] The Fraser Court emphasized that “fundamental values necessary to the maintenance of a democratic political system,” specifically a school setting, must account for the “sensibilities of fellow students.”[8] Furthermore, the “undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.”[9] Thus, the Sasser Court found that Defendants did not violate Sasser’s First Amendment rights, that Defendants were entitled to qualified immunity, and that Plaintiff failed to otherwise state a claim that he was entitled to relief. The Sasser Court ultimately dismissed Plaintiff’s Amended Complaint completely in upholding Defendants’ renewed Motions to Dismiss.
The Sasser Court’s decision demonstrates how a student’s right to freedom of speech on school property is not automatically equivalent with rights in other public settings. Although students do not shed their constitutional rights at the school entrance, their right to freedom of speech and expression must be considered given the characteristics of a particular environment. Prohibiting the use of vulgar, indecent, and offensive terms is an appropriative function of schools. Thus, the Sasser Court found that educators act within their authority when disciplining a student who uses racially offensive terms to describe another student at a school-sponsored, on-campus event.
John E. Tyrrell is a Member at Ricci Tyrrell Johnson & Grey who has decades of experience in the defense of sports liability litigation. Sarah Polacek is an intern at Ricci Tyrrell and a 3L at the Drexel University Thomas R. Kline School of Law.
[1] Dawkins later revised the sanctions, allowing Sasser to attend classes remotely, but prohibiting him from participating in UGA athletics, from attending UGA home games for a period of time, and from entering the UGA campus without EEO’s permission during the Fall 2018 semester.
[2] Additionally, Sasser alleged violations of his substantive and procedural due process rights, his equal protection rights, a claim for breach of contract, and a claim for declaratory and injunctive relief.
[3] Sasser v. Bd. of Regents, 2021 U.S. Dist. LEXIS 188703 at *5
[4] Ziegler v. Martin Cnty. Sch. Dist., 831 F.3d 1309, 1328 (11th Cir. 2016).
[5] Tinker v. Des Moines Indep. Comm. Sch. Distr., 393 U.S. 503, 506 (1969) (holding that a school district violated the students’ constitutional rights to freely express themselves when it prohibited students from wearing black armbands to protest the Vietnam war).
[6] Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682-86 (1986).
[7] Id. at 686.
[8] Id.
[9] Id.
