The old saying that “if it is not broke, don’t fix it” may not apply to high school athletics, at least according to a new lawsuit from an Oregon girl who was barred from joining her local school’s team and later expelled after she joined another one. Bridgetuning, as she is known on the internet, claims that she has been denied her right to play varsity football because of her involvement with online websites that promote pre-teen activity. In a nutshell, her claim: She didn’t follow the rules and got in trouble!
The First Amendment does NOT protect Leanne’s right to play a sport or engage in online activities while in high school. Oregon law considers Leanne guilty of negligence for being “reckless and negligent in the performance of sports.” While the phrase is used much differently than it is understood by most of us, the general meaning is that a school can bar a student for any reason or no reason at all. Leanne may be banned from varsity sports or her grades may drop, but she will still have to pay her school fees and she can never be fired from her job.
Her case is interesting and points to a serious lack of understanding about the First Amendment when it comes to college and high school students’ First Amendment rights. At issue is whether a female athlete should be punished for the same conduct that male athletes engage in on sports teams. The court may decide that Leanne caused harm or injury to herself due to her association with a sports website that promotes sexist messages and nude pictures. This would be akin to, say, a male athlete being involved with an adult magazine that features photos of nude women. The court may rule that this is simply harassment and that there is no violation of Title VII. However, if the court rules that she acted unreasonably, this could have a much broader impact on her professional future and her ability to receive a college scholarship.
As a result of this decision, other students in Leanne’s age group may be required to join her lawsuit. She may not be able to continue her sports at her new high school due to the fact that her old coach cannot hire her because of the actions of the sports team. She may be required to join the cheerleading team or a different sports club. Alternatively, she may be prohibited from taking any further sports.
This case raises a larger question about the First Amendment and school tolerance for sexually suggestive messages on athletic fields. Is the type of language that is used acceptable by the majority of Americans? And if so, do high schools have the right to punish those who disagree? These are questions that should be resolved by our society. But since we cannot have a direct answer without researching our nation’s history and current policies on this and other topics, we cannot rely on the courts to do this work for us. We must rely on ourselves.
Leanne’s story is an example of what happens when people use their own right of expression in a negative way on the basis of a stereotype-filled mind-set. This may occur on a daily basis at some places of employment, but it is certainly not always the case in most other settings. Leanne may wish to continue her career in basketball, but if her new coach says that she can not play varsity basketball because of her “big black bubble” or because she is constantly being harassed by the opposing team, she may well be excluded from playing her preferred sport. She may be subject to harsh punishment from her teammates for complaining about the unfairness of an act of discrimination.
The First Amendment does not prevent a public employer from disciplining an individual for complaining about sexual harassment on the basis that the person identifies as a woman. Likewise, a public school can expel a male student who asks the girl in his class out on a date if she likes football better than baseball. If the varsity athlete is disciplined for this conduct, should the school’s Title IV program allow him to continue in that particular sport because it gives him a sense of identity and a sense of assurance that the girl will not talk to anyone else about her preferences? The fact that Leanne has chosen to participate in varsity athletics in order to build a reputation and to have a coach support system does not give her the right to be treated unfairly. The First Amendment does not prevent a public employer from disciplining an individual for complaints of sexual harassment based on gender identity.
Title VII of the Civil Rights Act protects against sexual harassment on the basis of sex or gender in the workplace, whether or not the conduct actually occurs. An employer cannot, however, discriminate against a varsity athlete on the basis of gender. Title VII also requires that an employer eliminate any discriminatory employment practice once he learns or is informed that such discrimination has taken place. So, a recent decision in a California court may provide some guidance to athletic coaches and others who may discipline athletes on their teams, depending on their knowledge of Title VII.