Appeals Court Revives Suit on Football Pre-Game Prayers in State Championship

By Mark Walsh — November 18, 2019 4 min read
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November and December are a big time for state football playoff finals and championships in most of the country. One aspect of the 2015 Division 2A Florida state football championships is still being fought in the courts.

It has nothing to do with the result of the Dec. 4, 2015, game, in which University Christian School of Jacksonville defeated Cambridge Christian School of Tampa, 61-16, for the 2A title.

Before the championship game at Camping World Stadium in Orlando, both schools, which as their names suggest are private religious schools, asked the Florida High School Athletic Association for permission to recite a prayer over the public-address system. The schools pointed out that they held such prayers before their own home games, and that such public-address prayers had been permitted before the 2012 championship game.

But the FHSAA said no. The association, which governs public and private sports in Florida, is considered a “state actor” for constitutional purposes, said that it controlled the public-address microphone at the championship game, and any prayers might run afoul of the First Amendment’s prohibition against government establishment of religion and related court rulings.

The two Christian school teams were allowed to meet at the 50-yard line for a pregame prayer. In the following days and weeks, the FHSAA reiterated its position against allowing prayers over the PA system.

Cambridge Christian decided to sue, alleging that the association’s statements were evidence of a policy of hostility towards religion. The federal suit raised several claims, including that the FHSAA had barred religious speech but not secular speech, such as announcements from sponsors and other information over the PA system. Thus, the association had engaged in content- and viewpoint-discrimination in violation of the free speech clause.

The suit also alleged that the restrictions violated Cambridge Christian’s free exercise of religion rights and it sought a declaration that such prayers in a game featuring two Christian schools would not violate the establishment clause. The suit also raised similar state constitutional and statutory claims.

A federal district court granted the FHSAA’s motion to dismiss, concluding that all communication over the loudspeaker was government speech and that the schools had not been barred from praying.

In a Nov. 13 decision, a panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, reversed the district court in significant part and revived Cambridge Christian’s free speech and free exercise claims.

“The long and the 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 unanimous 11th Circuit panel said in Cambridge Christian School v. Florida High School Athletic Association.

The court said there was untested evidence that the FHSAA had allowed prayers before the 2012 championship as well as before the pre-championship rounds of the 2015 playoffs.

The court went on to say that the lawsuit plausibly alleges that the FHSAA created a “nonpublic forum,” meaning that it allowed some forms of private speech. The suit also plausibly alleges “that the FHSAA restricted Cambridge Christian’s speech on the basis of its content, and that the restriction was unreasonable on account of the FHSAA’s arbitrary and haphazard application of its policies,” the court said.

The appeals court said that while the restrictions may have been content-based, such as by allowing commercial messages but not the religious prayers, they were not viewpoint-based, since the association didn’t bar Christian messages while allowing, say, Jewish or Muslim prayers.

“The schools’ message does not appear to be naturally incompatible with the purposes of the forum,” the court said, since prayers were presented in the past, among other factors.

The court also revived the school’s free exercise claim, noting that it was clear that “communal, pre-game prayer” was an important part of the school’s traditions and belief system. The court dismissed the FHSAA’s suggestion that the schools could have used a bullhorn or another means to amplify the pregame prayers by players at the 50-yard line.

“It is not at all obvious to us that a bullhorn or prayer cards would unite the players, coaches, and fans in communal prayer inside a large football stadium, although further development of the record may show otherwise,” the court said.

“We do not know whether the course of litigation will establish violations of the First Amendment, but Cambridge Christian has plausibly pled enough in its complaint to get into the courthouse and be heard,” the court concluded.

A version of this news article first appeared in The School Law Blog.