In Re Tom and Jerry; the First Amendment and Saratoga State University

Joseph Wolf

SUNY University at Buffalo

 Dear President Spike of Saratoga State University,

The First Amendment is a cornerstone of our Constitution; it protects the right to speak

freely in addition to forming the foundation of religious rights. Saratoga State University is subject

to the provisions of the First Amendment, and they apply to the questions before us. The cases of

Tom and Jerry occupy a constitutional realm of first impression; whether First Amendment rights

apply to players on a State college football team.

For the reasons set forth in the following Memorandum, it is respectfully submitted that

Tom and Jerry, students at Saratoga State University, should retain their scholarships, and the

Uniform Policy be amended, pursuant to the First Amendment of the United States Constitution.

The Constitutionality of the Uniform Policy as Related to Toms actions

Saratoga State Universitys football team is governed by a Uniform Policy which states,

in part, that student athletes are absolutely prohibited from adding or altering items. This bylaw

prevents students from changing the uniform which consists of a yellow jersey, black knee- length

pants, and a helmet.

The majority of this Uniform Policy is constitutional. The plain colored clothes that are

mandated do not run afoul with any court decision. Frudden v. Pilling 742 F.3d 1199 remarked

had the uniforms consisted of plain colored tops and bottoms, [the school] would have steered

clear of any First Amendment concerns (amended). This is because plain colored tops and

bottoms involve no written or verbal expression of any kind and as a result the plaintiffs school

did not force him to communicate any message whatsoever Frudden v. Pilling. In the case at bar,

the current Uniform Policy requires the wearing of a village seal on the back of the helmet. This
requirement clearly distinguishes the Uniform Policy from the constraints of Frudden, and whether

or not this seal can be removed is the central issue in Toms case.

Tom is a football player at Saratoga State University. While being on the team is a

substantial part of Toms life, so are his political beliefs. Tom supports Suburban Cat Rights, and

as such, strongly opposes The Village of Gatos ordinance allowing the euthanization of roaming

cats in village suburbs. Tom does not want to show support for the village, and as a result he wishes

to remove the village seal from his helmet. The head coach of the football team, Coach C, has

stated that if Tom removes the symbol he will not be able to play, and will eventually lose his

scholarship.

It is respectfully submitted that the First Amendment protects Tom and his desire to remove

the village seal from his helmet. As the Supreme Court held in Tinker v. Des Moines Independent

Community School District 393 U.S. 503 a students rights, therefore, do not embrace merely the

classroom hours. When he is in the cafeteria, or on the playing field he may express his opinions,

even on controversial subjects (emphasis added). As Tom is on the playing field while

participating in the sport of football, he is ipso facto protected under the shield of the First

Amendment.

While Tom does not have a choice in wearing the plain colored top and bottom that are

mandated by the Uniform Policy, he does have a choice in the message that his attire conveys. In

fact, individuals regularly use their clothing to express ideas of opinions Canady v. Bossier

Parish School Board 240 F.3d 437. A village seal on the back of a helmet fundamentally forces

[a person] to communicate a message Frudden v. Pilling (amended). A message which, in the

case of Tom, requires him to be an instrument for fostering public adherence to the ideological

point of view he finds unacceptable Frudden v. Pilling (citing Wooley v. Maynard 430 U.S. 705).
This requirement is subject to the mandates of the First Amendment, which protects both the right

to speak freely and the right to refrain from speaking at all Frudden v. Pilling (citing Wooley v.

Maynard 430 U.S. 705). Tinker v. Des Moines, Frudden v. Pilling, and Canady v. Bossier provide

Tom with First Amendment protection in his decision to not wear the village seal.

In order to suppress speech such as the removal of a symbol, an institution must pass what

has become to be known as the Tinker Standard. The test states someone may express their opinion

if he does so without materially and substantially interfering with the requirements of appropriate

discipline in the operation of the school, and without colliding with the rights of others Tinker v.

Des Moines. Toms action of removing the village seal off of his helmet, a symbol that serves no

protective purpose nor is required by the rules of football, does not substantially interfer[e] with

the requirements of appropriate discipline in the operation of the school Tinker v. Des Moines.

Nor does it collid[e] with the rights of others Tinker v. Des Moines, in any real sense of the

phrase.

The Tinker test is designed to prevent the very thing that is stopping Tom from removing

the seal; suppressing speech due to an undifferentiated fear or apprehension of disturbance

Tinker v. Des Moines. Coach C wishes to curtail Toms speech due to a fear that he is showing

incredible disrespect for the team. Neither this reason for suppression, nor Toms action of

removing the seal, merit compelling weight to satisfy a Tinker Standard test. As Chief Justice

Burger stated, Ordinarily political debate and division, however vagarious and even partisan, are

normal and healthy manifestations of our democratic system of government Lemon v. Kurtzman

403 U.S. 602.

Revoking Toms scholarship contradicts Tinker v. Des Moines and Frudden v. Pilling.

Thus, a lawsuit would likely result, and the University would face maximum exposure against a
plaintiff who has suffered the loss of his First Amendment rights. The damage caused by the loss

of First Amendment rights, even for minimal periods of time, unquestionably constitutes

irreparable injury Newsome v. Albemarle County School Board 354 F.3d 249 (citing Elrod v.

Burns 427 U.S. 347).

In closing, while a school dress code need not be as detailed as a criminal code Newsome

v. Albemarle County School Board, Saratoga is a state university and is subject to the First

Amendment, which protects both the right to speak freely and the right to refrain from speaking

at all Frudden v. Pilling (citing Wooley v. Maynard 430 U.S. 705). In order to deny Toms wish

of removing the symbol a Tinker Standard test would have to be passed. With the current facts of

the case, there is no chance the University would meet the scrutiny of the Tinker Standards

watchful eye. The Uniform Policy should be amended to allow students such as Tom the ability to

remove the village seal from their helmet, pursuant to the First Amendment of the Constitution of

the United States.

The Constitutionality of Jerrys Actions

Before every game Coach C requires players to kneel during a pregame prayer. The act of

kneeling is not one of choice, rather, Coach C punishes players who refuse to kneel by decreasing

their playing time. This requirement effects Jerry who is not only a football player, but also a

devout follower of a religious group that participates in the worship of animals. Accordingly, Jerry

is uncomfortable with kneeling for the pregame prayer. He expressed these discomforts to Coach

C, who thereafter recommended that Jerrys scholarship be revoked.

While the establishment clause clearly requires a case-by-case examination of the

particular facts presented Chaudhuri v. State of Tennessee 130 F.3d 232, it is definitive that the
requirement to kneel is coercive, and as a result, is prima facie unconstitutional. The First

Amendment of the Constitution of the United States asserts Congress shall make no law

respecting an establishment of religion, or prohibiting the free exercise thereof This

constitutional shield is patently disregarded by Coach C.

As a state university, [Saratoga State University] is subject to the strictures of the

establishment clause Chaudhuri v. State of Tennessee (amended), which prohibits a school from

sponsoring any type of prayer, even a nondenominational one, since a state may not pass laws

which aid one religion, aid all religions, or prefer one religion over the other Mellen v. Bunting

327 F.3d 355. Coach C is a State university football coach, and therefore he is acting on behalf of

the State. Coach Cs pregame prayer violates the First Amendment of the United States

Constitution.

While this discussion could end there, it goes one step further. Coach C is coercing students

into participating in state-led prayer. Jerry is able to attend Saratoga State University because he

has a scholarship. Jerry has a choice to make; either he kneel and surrender his religion, or he

defies and loses his ability to go to college. Coach C will perhaps make the argument that Jerry is

not actually being coerced, and he can refuse to kneel. However, law reaches past formalism, and

to say that a student has a real choice [to not kneel when their scholarship is on the line] is

formalistic in the extreme Lee v. Weisman (modified).

This flagrant form of coercion has been outright banned. Lee v. Weisman 505 U.S. 577

delineated the coercion test (Mellen v. Bunting) under which the Constitution guarantees that

government may not coerce anyone to support or participate in religion... Further, Justice

Kennedy decisively closed Lee v. Weisman by stating, no holding suggests that a school can

persuade or compel a student to participate in a religious exercise. That is being done here, and it
is forbidden by the establishment clause. The Supreme Court is steadfast in its decision; coercing

a student to pray is prima facie unconstitutional.

In closing, there is no question that Coach Cs coercive practices cause grave constitutional

concern. If the President of Saratoga State University affirms Coach Cs prayer, that choice will

be attributable to the state, and from a constitutional perspective it is as if a state statute decreed

that the prayers must occur Lee v. Weisman. This decision would be the highest and most

egregious form of constitutional breeches. It would blatantly usurp Jerrys First Amendment rights,

causing him to have an irreparable injury (Newsome v. Albemarle County School Board), in

addition to being unable to attend college. Thus, Jerrys scholarship should not be revoked under

the circumstances presented in this case.

...

For the reasons set forth within, it is respectfully submitted that Tom and Jerry, students at

Saratoga State University, retain their scholarships, and the Uniform Policy be immediately

amended, to comply with the mandates of the First Amendment of the Constitution of the United

States.

Sincerely,

Joseph Wolf, Senior Council for Saratoga State University