DONNELLY FINAL 1/13/2010 10:53:42 AM

COMMENTS:

WHAT HAPPENS WHEN STUDENT-

ATHLETES ARE THE ONES WHO
BLOW THE WHISTLE?: HOW LOWERY
V. EUVERARD EXPOSES A
DEFICIENCY IN THE FIRST
AMENDMENT RIGHTS OF STUDENT-
ATHLETES

Edmund Donnelly*
Abstract: John Madden once said, Winning is the best deodorant. What
happens when a coach takes this win-at-all costs attitude too far, and student-
athletes attempt to protest it? This comment examines the recent decision of
Lowery v. Euverard, and analyzes the challenges and shortcomings of First
Amendment jurisprudence in the setting of school sponsored athletics. In
this case, four members of the Jefferson County High School football team
were dismissed for circulating a petition amongst their teammates that called
for their coach to be fired. Although the petition did not explicitly state the
reasons for it, the petition was in response to severe alleged misconduct by
the coach. The dismissed players sued the coach and school district for
violating their First Amendment free speech rights. This case reveals
shortcomings and inconsistencies within First Amendment jurisprudence in
the setting of team sports. At issue in this case are the limitations of the test
the Supreme Court articulated in Tinker v. Des Moines Independent School
District, the main case controlling Free Speech in schools and the case
controlling in Lowery. This test merely provides a framework for assessing
student speech that is simply a protest and does not adequately address
situations where there is an element of whistleblower conduct involved in the
student protest. The Comment argues that, based on the flexibility the

941
DONNELLY FINAL 1/13/2010 10:53:42 AM

942 NEW ENGLAND LAW REVIEW [Vol. 43:941

Supreme Court established in the Tinker test, courts should adopt a more
protective rule for situations where the speech at issue is not exclusively a
protest but also a form of whistleblowing, no matter how unsophisticated.

INTRODUCTION ..........................................................................................942
BACKGROUND ............................................................................................945
I. The Free-Speech Rights of Students in a School Setting ............945
II. Lowery v. Euverard....................................................................950
A. Facts and Procedural History..............................................950
B. Legal Analysis of the Sixth Circuit.....................................952
ANALYSIS ..................................................................................................955
III. Incorporating Elements of Whistleblower Protections
into the Tinker Analysis...........................................................955
A. The Changing Environment of High School Sports
and the Growing Problem of Coach Misconduct...............955
B. Statutory and Common Law Protections for
Whistleblowers ..................................................................957
C. The Tennessee Public Protection Act and Common
Law Equivalent..................................................................958
D. The Conduct of the Parties in Lowery Analyzed Under
Tennessee Authority ..........................................................960
E. Proposed Additions to the Rule in Tinker ...........................961
CONCLUSION ..............................................................................................965

INTRODUCTION
Current National Football League broadcaster, John Madden, once
said, Winning is the best deodorant. 1 Some of the nearly 47 million
youths that participate in organized athletics 2 have seen this Machiavellian,
win-at-all-costs attitude firsthand: 42% of youth surveyed reported
witnessing a coach scream at officials, 35% reported witnessing a coach

* Candidate for Juris Doctor, New England School of Law (2009). B.A., Government and
Spanish, cum laude, Georgetown University (2003). For the past five years, Mr. Donnelly
has worked for a state representative in the Massachusetts legislature. The author may be
contacted at edmund.donnelly@gmail.com. I would like to thank my family for their love,
patience, and support.
1. Bruce Barcott, Count Me Out, Coach, LEGAL AFF., Nov-Dec. 2003, at 11-12,
available at http://www.legalaffairs.org/issues/November-December-2003/scene_barcott_
novdec03.msp.
2. David Light Shields et al., The Sport Behavior of Youth, Parents, and Coaches: The
Good, the Bad, and the Ugly, 3 J. RES. CHARACTER EDUC. 43, 43-44 (2005), available at
http://www.characterandcitizenship.org/research/YouthSportBehaviors%5B2%5D.pdf.
DONNELLY FINAL 1/13/2010 10:53:42 AM

2009] STUDENT-ATHLETE WHISTLEBLOWERS 943

berate his or her players for making a mistake, and 26% of youth reported
witnessing a coach encourage getting back at an opponent. 3 Troubling
figures also surround the incidence of coaches encouraging cheating and
encouraging attempts to injure an opponent, as 7% and 8% of youth
athletes, respectively, reported a coach encouraging both of these
behaviors. 4 Most troubling are the 4% of athletes who reported that a coach
hit, kicked, or slapped them, which if extrapolated, means coaches abuse
nearly two million athletes every year. 5 Not surprisingly, the athletes
themselves reported a higher incidence of the troubling coaching behaviors
than did the actual coaches surveyed in the same study. 6 Because of the
obvious problem of under-reporting that is inherent in a self-reporting
study regarding such a sensitive topic, these figures serve as a rough
estimate of problem behaviors, rather than an exact reflection of the state of
youth athletics. 7
With a plot line strikingly similar to the facts of the case analyzed in
this Comment, the movie Varsity Blues offers Hollywoods solution to the
issue of problematic coaches. 8 In the film, a Texas football team suffers at
the hands of Coach Bud Kilmer, a coaching legend who berates players,
humiliates them, forces them to play injured, and subverts one star players
recruitment efforts, most likely out of racism. 9 Having suffered enough at
the hands of Coach Kilmer, the team stages a coup dtat at halftime of the
last game of the season. 10 The injured starting quarterback coaches the
second half of the game, and his replacement leads the team to a comeback
victory, as Coach Kilmer cleans out his office. 11 Fortunately, Jonathon
Moxon, Lance Harbor, Billy Bob, and the rest of the teammates portrayed
in Varsity Blues did not live in the Jefferson County School District and
were not forced off the team for their coup dtat against Coach Kilmer. 12
If they had lived in the Sixth Circuit, then the movie would have ended
much differently, as the plaintiffs in Lowery v. Euverard did not enjoy a
similar Hollywood ending to their football careers at Jefferson County
High School. 13

3. See id. at 50.

4. Id. at 56.
5. Id.
6. Id. at 56-57.
7. See id. at 56.
8. VARSITY BLUES (Paramount Pictures 1999).
9. Id.
10. Id.
11. Id.
12. See id.; Lowery v. Euverard, 497 F.3d 584, 585 (6th Cir. 2007).
13. See Lowery, 497 F.3d at 600-01.
DONNELLY FINAL 1/13/2010 10:53:42 AM

944 NEW ENGLAND LAW REVIEW [Vol. 43:941

Against the backdrop of the troubling statistics discussed above and

recognizing the tension between team discipline and free speech, this
Comment examines how the Lowery case reveals a deficiency in the test to
determine the extent of free speech rights enjoyed in public schools, as
articulated by the Supreme Court in Tinker v. Des Moines Independent
Community School District. 14 Specifically, Tinker affords no protection to
students when the student speech at issue goes beyond a simple protest and
could be considered an attempt at, or commingled with, whistleblower
conduct. 15
Part I of this Comment outlines the controlling Supreme Court
decisions related to the First Amendment rights of students. Part II of this
Comment provides a detailed analysis of the Lowery case. Part III of this
Comment offers an alternative approach to regulating student speech in
situations like Lowery where the speech in question is not merely used as
protest, but also may be perceived as whistleblower conduct. It examines
the existing state and federal statutes that offer whistleblower protections to
public employees and even at-will employees, employees who normally
can be fired without cause. This Comment argues that, based on the
flexibility the Supreme Court established in the Tinker test, and especially
in light of the narrow factual situation that led to that test, courts should
adopt a more protective rule for situations where the speech at issue, as in
Lowery, is not exclusively a protest but also a form of whistleblowing, no
matter how unsophisticated. 16 Rather than attempt to analyze the dozens of
state and federal whistleblower protection statutes, this Comment focuses
on the statutory and common law protections for whistleblowers provided
in Tennessee. 17 These provisions could provide reasonable protections if
incorporated into a rule governing the speech of studentathletes. 18 This
Comment also focuses on the whistleblower protections afforded by
Tennessee common law and statutory authority because the alleged conduct
of Coach Euverard constituted possible violations of Tennessee state law,
and all of the parties were residents of Tennessee. 19

14. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969).
15. See Lowery, 497 F.3d at 596.
16. The plaintiffs misspelled their coachs name in the petition they circulated. See
Lowery v. Euverard, 497 F.3d 584, 585 (6th Cir. 2007).
17. See infra Part III.C.
18. See infra Part III.E.
19. Lowery, 497 F.3d at 585.
DONNELLY FINAL 1/13/2010 10:53:42 AM

2009] STUDENT-ATHLETE WHISTLEBLOWERS 945

BACKGROUND

I. The Free-Speech Rights of Students in a School Setting

The First Amendment to the United States Constitution states,
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or
of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances. 20 Because of the
breadth of the First Amendment, the Supreme Court has subdivided all the
different types of expression into protected and unprotected speech. 21 To
make this distinction, the Supreme Court has created categories of
speech. 22 The categories are determined by considerations such as the
medium, the subject matter, or the institutional context of the speech. 23
The institutional context means the setting in which the speech occurs,
such as in a public school or a prison. 24 In some instances, the subject
matter and the institutional context intermingle to render otherwise
protected speech unprotected. 25
The importance of institutional context was revealed when a group of
students in Des Moines, Iowa decided to wear black armbands in 1965 to
protest the Vietnam War. 26 Prior to this protest, the principals of the Des
Moines schools learned of the plan and decided on a policy to curtail the
protest. 27 Under this policy, a student wearing an armband would be asked
to remove it, and if the student refused this directive, then the principal
would suspend the student until the student returned to school without the
armband. 28 The plaintiffs in Tinker wore armbands to school, refused to
remove them, and consequently were suspended. 29 The students and

20. U.S. CONST. amend. I.

21. Scott A. Moss, Students and Workers and Prisoners-Oh, My! A Cautionary Note
About Excessive Institutional Tailoring of First Amendment Doctrine, 54 UCLA L. REV.
1635, 1637 (2007) (arguing that courts allow heavy restrictions on free speech rights in
prisons, public schools, and workplaces and give undue deference to government officials in
those situations).
22. Id.
23. Id.
24. Id.
25. Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 682 (1986) ([T]he constitutional rights of
students in public school are not automatically coextensive with the rights of adults in other
settings.); see Lowery v. Euverard, 497 F.3d 584, 587-88 (6th Cir. 2007).
26. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 504 (1969).
27. Id.
28. Id.
29. Id. Two of the plaintiffs were students at separate Des Moines high schools and the
DONNELLY FINAL 1/13/2010 10:53:42 AM

946 NEW ENGLAND LAW REVIEW [Vol. 43:941

parents who organized this protest had decided to wear the armbands for a
two-week period during the holiday season to publicize their objections
to the Vietnam War, and the students did not return to school until after this
planned protest period ended. 30 The students sued seeking an injunction
under section 1983 of title 42 of the United States Code, restraining
the . . . school officials and the . . . members of the board of directors of the
school district from disciplining the plaintiffs and also seeking nominal
damages. 31
The district court dismissed the claim, finding that the school
officials actions were justified because they sought to prevent disturbance
of school discipline. 32 On appeal, the Court of Appeals for the Eighth
Circuit upheld the decision. 33 To evaluate the protection of free speech
rights that collide with the rules of the school authorities, 34 the Supreme
Court focused on measuring the potential for disruption of the school
environment that the speech at issue could cause. 35 After making this
assessment regarding the potential for disruption, the Court then analyzed
the reasonableness of the school administrators actions. 36 To justify this
position, the Court noted that undifferentiated fear or apprehension of
disturbance is insufficient to undercut the free speech rights guaranteed in
the Constitution. 37 Further, the Court noted that any deviation from the
majority standpoint, or any disagreement in class, in the lunchroom, or
anywhere else at a school could create a disturbance, but this potential for
disagreement is the basis of our national strength and of the independence
and vigor of Americans who grow up and live in this relatively permissive,
often disputatious, society. 38 Ultimately, the Court held that the test for
restricting student speech, given the principles mentioned above, requires a
showing that the conduct and speech at issue would materially and
substantially interfere with the requirements of appropriate discipline in the
operation of the school. 39

other plaintiff was a student in junior high school. Id.

30. Id.
31. Id.
32. Tinker, 393 U.S. at 504-05.
33. Id. at 505.
34. Id. at 507.
35. See id. at 508-09.
36. See id. at 508.
37. Id.
38. Tinker, 393 U.S. at 508-09.
39. Id. at 509 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).
DONNELLY FINAL 1/13/2010 10:53:42 AM

2009] STUDENT-ATHLETE WHISTLEBLOWERS 947

As applied to the facts in Tinker, the Court stated that the school
principals punished the students for a passive and undisruptive expression
of political belief because of the principals unfounded and unsubstantiated
fear of disruption to the school environment. 40 The Court found that the
students neither disrupted nor attempted to disrupt the functioning of the
school environment or the affairs of their classmates, and that, under these
circumstances, the Constitution should not allow school officials to restrict
these students right to expression. 41 Additionally, the Court noted that
school authorities allowed other students to wear the buttons of political
candidates and even allowed some students to wear the Iron Cross, a
traditional symbol of Nazism, further weakening the validity of the school
principals actions. 42 The Supreme Court in Tinker reversed the ruling of
the lower courts, reinforcing the belief that [i]t can hardly be argued that
either students or teachers shed their constitutional rights to freedom of
speech or expression at the schoolhouse gate. 43 The Court further
emphasized its protection of student speech by explaining that school
authorities do not enjoy absolute authority in their regulation of students
and that public schools may not serve as enclaves of totalitarianism. 44
Additionally, the Court did not limit its holding to speech only in the
classroom, but instead stated that it expected, and protected, the free
exchange of ideas and opinions in the cafeteria, on the playing fields, or
anywhere on campus during authorized hours. 45
In the decades following Tinker, the Supreme Court created several
other tests to determine the constitutionality of school administrators
actions regulating speech when the speech at issue was not the type of pure
political protest at issue in Tinker. 46 In cases involving vulgar and obscene
speech, the Court applies the test articulated in Bethel School District v.
Fraser. 47 In the Bethel case, a student was suspended after delivering an
obscene nominating speech at a school assembly that was laden with sexual
innuendo. 48 The Court held that school officials may proscribe vulgar and
lewd speech if the officials believe that the speech in question would

40. Id. at 508.

41. Id. at 514.
42. Id. at 510.
43. Id. at 506, 514.
44. Tinker, 393 U.S. at 511.
45. Id. at 512-13.
46. Perry Zirkel, The Supreme Court Speaks on Student Expression: A Revised Map,
221 W. EDUC. L. REP. 485, 485-86 (2007).
47. Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986); Lowery v. Euverard, 497 F.3d 584,
588 (6th Cir. 2007).
48. See Bethel Sch. Dist., 478 U.S. at 685.
DONNELLY FINAL 1/13/2010 10:53:42 AM

948 NEW ENGLAND LAW REVIEW [Vol. 43:941

undermine the schools basic educational mission. 49 To justify this

encroachment on free speech rights, the Court stated that school assemblies
are no place for a sexually explicit monologue directed towards an
unsuspecting audience of teenage students. 50 Further, public schools must
teach the shared values of a civilized social order which must be
reinforced by the behavior of teachers and students within the school
setting. 51
In cases involving school-sponsored speech, the Court applies the test
from Hazelwood v. Kuhlmeier. 52 In Hazelwood, the Court upheld the
actions of a school principal when he censored certain articles of a school-
sponsored newspaper. 53 The newspaper received its funding from the
school district, and students from a journalism class created the content for
the newspaper. 54 The principal censored the articles (dealing with teen
pregnancy and divorce) based on his belief that they violated the schools
policy of protecting the privacy interests of its students and also contained
information about birth control and sex that was inappropriate for younger
students at the school. 55 In situations where the objectionable speech stems
from school-sponsored expressive activities the Court departed from the
rule articulated in Tinker, and instead held that educators may censor the
speech as long as the actions are reasonably related to legitimate
pedagogical concerns. 56
Interestingly, the Court also recently added another very specific layer
to the First Amendment jurisprudence related to speech in a school setting
in the case of Morse v. Frederick. 57 In Morse, the Court considered the
constitutionality of a suspension of a student after the student unfurled a
banner that read, BONG HiTS 4 JESUS at a school sponsored event. 58
As the Olympic torch made its way to Utah in 2002, it passed Juneau-
Douglas High School in Juneau, Alaska during the school day. 59 The
principal, Ms. Morse, allowed the students to leave class and observe the

49. Id.
50. Id.
51. Id. at 683.
52. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); see Lowery, 497 F.3d at
588.
53. Hazelwood, 484 U.S. at 271-73.
54. Id. at 262-63.
55. Id. at 263.
56. Id. at 272-73.
57. 127 S.Ct. 2618 (2007).
58. Id. at 2622-23.
59. Id. at 2622.
DONNELLY FINAL 1/13/2010 10:53:42 AM

2009] STUDENT-ATHLETE WHISTLEBLOWERS 949

torch pass the school, while school officials monitored their behavior. 60 As
the torch and camera crews passed, several students helped unveil the
banner, leading to the principal immediately confronting the students and
demanding that they take it down. 61 All of the students except for Plaintiff
Frederick complied. 62 Upon Fredericks failure to comply with Ms.
Morses order, she demanded that Frederick report to her office
immediately and subsequently suspended him for ten days. 63 In justifying
her actions, Ms. Morse stated that she disciplined Frederick for advocating
illegal drug use in violation of school policy. 64 In response to his
suspension, Frederick brought suit against the principal and school district
alleging, under 42 U.S.C. 1983, they had violated his First Amendment
rights. 65 Ultimately, the Court concluded that school officials have the
authority to circumscribe the free speech rights of students at school
sponsored events when that speech is reasonably viewed as promoting
illegal drug use. 66 The Court specifically pointed to the serious public
policy concerns that accompany the currently high incidence of illegal drug
use among school-age children. 67
All other situations involving the restriction of the free speech rights
of students remain governed by Tinker. 68 The parties in Lowery all agreed
Tinker was the controlling authority given that the speech at issue in this
case was not vulgar or obscene, was not school-sponsored, and did not
involve the advocating of illicit drug use. 69 Although the majority in Morse
distinguished Tinker as only applying to political speech, 70 this conclusion
seems to only flow from the facts of the case rather than any specific
language within the Courts analysis or holding. 71 Despite the majoritys
attempt to distinguish and categorize the Tinker holding as specific to

60. Id.
61. Id.
62. Morse v. Frederick, 127 S.Ct. 2618, 2622 (2007).
63. Id.
64. Id. at 2622-23.
65. Id. at 2623.
66. Id. at 2625.
67. See id. at 2628. Specifically, the Court cited statistics that half of all twelfth-grade
students, one-third of tenth-grade students and one-fifth of all eighth-grade students had
tried an illicit drug. Id.
68. See Lowery v. Euverard, 497 F.3d 584, 588 (6th Cir. 2007).
69. Id.
70. See Morse v. Frederick, 127 S.Ct. 2618, 2626 (2007).
71. See Zirkel, supra note 46, at 487.
DONNELLY FINAL 1/13/2010 10:53:42 AM

950 NEW ENGLAND LAW REVIEW [Vol. 43:941

purely political speech, Tinker, according to the analysis of the Court of

Appeals for the Sixth Circuit, seems to serve as a catch-all for the speech
cases that do not fit within any of these other relatively narrow categories. 72

II. Lowery v. Euverard

A. Facts and Procedural History

Derrick Lowery, Jacob Giles, Joseph Dooley, and Dillon Spurlock
were students at Jefferson County High School and members of the varsity
football team. 73 The coach at Jefferson County was Marty Euverard, a man
who allegedly followed the Bud Kilmer style of coaching. 74 In October of
2005, Dooley, Lowery, and Giles discussed a petition, which Giles typed,
that stated, I hate Coach Euvard [sic] and I dont want to play for him. 75
This petition begs the question: Why did the members of the team hate
Coach Euverard? Plaintiffs stated that the hatred stemmed from Euverards
coaching methods, which included striking a player on the helmet,
throwing away the college recruiting letters of disfavored members of the
team, and creating a psychologically intimidating environment. 76
Additionally, the players alleged that Euverard forced the players to engage
in a year-round conditioning program in violation of the rules of the
Tennessee Secondary School Athletic Association (TSSAA). 77

72. See Lowery, 497 F.3d at 588; see also Morse, 127 S.Ct. at 2626 (distinguishing the
political message in Tinker from the speech in Fraser); Hazelwood v. Kuhlmeier, 484
U.S. 260, 266, 272-73 (1988) (holding the Tinker standard does not apply when determining
whether a school may refuse to sponsor student speech); Bethel Sch. Dist. v. Fraser, 478
U.S. 675, 685-86 (1986) (holding that school officials can sanction a student who gave a
vulgar speech in front of classmates if it is found that such speech is wholly inconsistent
with the fundamental values of public education).
73. Lowery, 497 F.3d at 585.
74. Compare Lowery, 497 F.3d at 585 (describing the aggressive coaching methods of
the defendant), with VARSITY BLUES, supra note 8 (depicting the fictional character of Bud
Kilmer, a relentlessly degrading and aggressive Texas high school football coach).
75. Lowery, 497 F.3d at 585.
76. Id.
77. Id. The Tennessee Secondary School Athletic Association establishes detailed,
sport-specific regulations outlining issues such as when team practices may begin, when
team-conditioning programs may begin, how many preseason games are allowed, and also
instituting dead periods when no coach-supervised activity associated with that sport may
occur. TENN. SECONDARY SCH. ATHLETIC ASSN CONST. art. IV, 7-8 (2007-08), available
at http://www.tssaa.org/Handbook/handbook.pdf.
DONNELLY FINAL 1/13/2010 10:53:42 AM

2009] STUDENT-ATHLETE WHISTLEBLOWERS 951

The plaintiffs circulated the petition before and after school, during
breaks, and outside of football practice so as not to cause any disruption
in school or on the field. 78 After circulating the petition, Plaintiffs Giles
and Dooley intended to wait until the season ended before presenting the
petition to the school principal, also a defendant in the case, to further
reduce the potential disruption the petition might have had. 79 Ultimately,
eighteen of the players on the thirty-seven-member roster signed the
petition. 80 During the three days that the petition circulated amongst the
players, no arguments ensued amongst the teammates as a result of the
petition. 81 The plaintiffs believed that the petition merely documented,
rather than created, the ill feelings the players shared about Euverard. 82
A few days after the plaintiffs began circulating the petition, another
player on the team mentioned it to an assistant coach, who subsequently
informed Euverard. 83 After this discovery, Euverard called an all-coaches
meeting, that the principal also attended, and the coaches decided to
question the players individually about the petition. 84 That questioning
occurred the day after the meeting on October 10, 2005. 85 During the
questioning and while the plaintiffs were waiting in the locker room, there
was a disturbance between Giles, Dooley, Lowery, and one of the assistant
coaches, as one of the teammates went to be questioned. 86 After the
disturbance, Euverard attempted to question the three plaintiffs present at
the meeting individually, but they refused and would only meet with him as
a group. 87 After this exchange, Euverard told the three plaintiffs to collect
their belongings and leave. 88 Plaintiff Spurlock was not in school on the
day these interviews occurred. 89 The following day, Euverard interviewed
Spurlock, asking him if he signed the petition and if he still felt the same

78. Final Brief of Plaintiffs-Appellees at 12, Lowery v. Euverard, No. 06-6172 (6th Cir.
Jan. 4, 2007).
79. Lowery, 497 F.3d at 585.
80. Final Brief of Plaintiffs-Appellees, supra note 78, at 13.
81. Id.
82. Id.
83. Lowery, 497 F.3d at 586.
84. Id.
85. Id.
86. See id.
87. Id.
88. Id.
89. Lowery, 497 F.3d at 586.
DONNELLY FINAL 1/13/2010 10:53:42 AM

952 NEW ENGLAND LAW REVIEW [Vol. 43:941

way. 90 When Spurlock answered that he had signed the petition and that he
no longer wanted to play for Euverard, Euverard dismissed him from the
team. 91
On December 9, 2005, the plaintiffs filed suit, alleging that the
defendants deprived them of their First Amendment rights while acting
under color of state law. 92 The defendants filed a motion for summary
judgment based on qualified immunity, which the district court denied. 93
The defendants then appealed the district courts decision to the Sixth
Circuit. 94 Under the analysis that the Sixth Circuit applied, the defense of
qualified immunity is subject to a two-part test, beginning with an analysis
by the court to determine whether the conduct of the official violated a
right protected by the Constitution. 95 If the official violated a
constitutionally protected right, then the court would next examine whether
this right was clearly established at the time of the violation. 96 Thus, the
application of the qualified immunity test in the context of Lowery began
with the Sixth Circuit determining whether the plaintiffs dismissal from
the football team constituted a violation of their First Amendment rights. 97
If the court had found that a violation occurred, then the court would next
determine whether the violated right was clearly established at the time of
the violation. 98 Under this analysis, a defendant could assert a successful
affirmative defense of qualified immunity if the violated right was not
clearly established at the time of the defendants action. 99

B. Legal Analysis of the Sixth Circuit

To determine whether this student speech was protected, the Sixth
Circuit turned to the test articulated in Tinker: 100 [S]chool officials may
regulate speech that materially and substantially interferes with the
requirements of appropriate discipline in the operation of the school. 101
This analysis does not prescribe a one size fits all approach, and the

90. Id.
91. Id.
92. Final Brief of Plaintiffs-Appellees, supra note 78, at 4, 32.
93. Lowery, 497 F.3d at 586.
94. Id.
95. Id. at 586-87.
96. Id. at 587.
97. Id.
98. Id.
99. See Lowery, 497 F.3d at 587.
100. See supra text accompanying note 100.
101. Lowery, 497 F.3d at 588 (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
393 U.S. 503, 513 (1969)).
DONNELLY FINAL 1/13/2010 10:53:42 AM

2009] STUDENT-ATHLETE WHISTLEBLOWERS 953

Supreme Court explained that it must consider both the context and content
of the speech, as well as the schools actions in response to the speech. 102
In its analysis, the Sixth Circuit framed this case as an attempt by the
plaintiffs to establish a right to belong to the Jefferson County football
team on their own terms 103 and basically forced the operation of the team
to be up for a vote after every play. 104
To apply the Tinker test and gauge the protection owed to the speech
of the plaintiffs in Lowery, the Sixth Circuit examined the balance between
the need for a coach to maintain team discipline and the conflicting speech
rights of student athletes on that team. 105 The Sixth Circuit also noted that
the unique mission of the public school system requires some
circumscription of student rights under the First Amendment. 106 As a result
of this uniqueness, schools do not function like democracies and, unlike our
system of government, schools feature a top-down authority structure
rather than a bottom-up structure. 107 To explain this top-down versus
bottom-up authority structure, the Sixth Circuit compared the right of every
American citizen to criticize the governments policy with the right of a
soldier to disrespect his or her commanding officer. 108 The first example is
indicative of a bottom-up authority structure, while the right in the second
example does not exist because of the top-down structure of military
governance. 109 Clearly, the freedom of speech rights of the citizen and the
soldier are not equal, as the citizens exercise of that right is essential in a
democracy, while the soldiers similar exercise of free speech is anathema
to the military. 110 In a top-down system, the governed need not consent to
the authority of those in power. 111 The court categorized the governance
system of schools and school activities, such as athletics, firmly and
entirely as a top-down system. 112

102. Id.
103. Id. at 589.
104. See id. at 591.
105. See id. at 587-88.
106. The primary duty of school officials and teachers . . . is the education and training
of young people . . . . Without first establishing discipline and maintaining order, teachers
cannot begin to educate their students. Id. at 588 (quoting New Jersey v. T.L.O., 469 U.S.
325, 350 (1985) (Powell, J., concurring)).
107. Lowery, 497 F.3d at 587-88.
108. See id. at 587.
109. See id.
110. See id.
111. See id. at 588.
112. See id.
DONNELLY FINAL 1/13/2010 10:53:42 AM

954 NEW ENGLAND LAW REVIEW [Vol. 43:941

In Lowery, the court further circumscribed the rights of student

athletes, tightening the already diminished free speech rights of the general
student body by explaining that the educational needs of the classroom are
not necessarily transferable to the playing field, where the goal of the team
is victory, not the exchange of competing ideas. 113 Further, the coach
determines how best to obtain that goal . . . [t]he plays and strategies are
seldom up for debate. Execution of the coachs will is paramount. 114
Thus, any exercise of free speech that could jeopardize this team dynamic
is not protected under the Constitution. 115
As a result of this perception of authority structure within schools,
and especially school athletics, the Sixth Circuit held that school officials
or coaches do not need absolute certainty that disruption will occur under
Tinker, but must show that the possibility that it will occur is reasonable. 116
Under Tinker, school officials are not required to wait until the horse has
left the barn before closing the door. 117 As the court analyzed the potential
for disruption that the plaintiffs actions might have, it found that the
petition would sow disunity and undermine Euverards authority. 118
The potential disunity and disrespect that the coach perceived the petition
to be creating was sufficient to satisfy the materially or substantially
interfere test articulated in Tinker. 119 The Sixth Circuit argued that the
insubordinate acts that the plaintiffs engaged in during the team meeting
were evidence of the disruption the petition caused. 120 This argument
ignores the reality that the meeting occurred because a player told the
assistant coach about the petition, not because the coaches were able to
discern any difference in the teams attitude during the three days that the
petition circulated amongst the players. 121 Nonetheless, the court held that
the rule articulated in Tinker did not protect the speech of the students in
Lowery. 122 As a solution, the court noted that the students were free to
continue their campaign to have Euverard fired[,] but they could not
continue this campaign as members of his football team. 123

113. See Lowery, 497 F.3d at 588-89.

114. Id. at 589 (quoting Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1190 (6th Cir.
1995)).
115. See id. at 600-01.
116. Id. at 592.
117. Id. at 591-92.
118. Id. at 600.
119. See Lowery, 497 F.3d at 596.
120. See id. at 586.
121. See id.
122. Id. at 596.
123. Id. at 600.
DONNELLY FINAL 1/13/2010 10:53:42 AM

2009] STUDENT-ATHLETE WHISTLEBLOWERS 955

Concluding that Tinker neither requires teachers to cede control of

their classroom to their students, nor coaches to hand over control of their
teams to their players, the Sixth Circuit found no constitutional violation in
the dismissal of the students from the team. 124 Accordingly, the Sixth
Circuit did not need to apply the second prong of the qualified immunity
test. 125

ANALYSIS

III. Incorporating Elements of Whistleblower Protections into the

Tinker Analysis
Although student-athletes enjoy diminished constitutional rights as a
result of their decision to participate in athletics, 126 a reasonable addition to
the Tinker rule could be created by combining elements from the Tennessee
statute and common law to better protect students who find themselves
engaged in speech that more closely resembles whistleblower conduct than
mere political protest. 127

A. The Changing Environment of High School Sports and the

Growing Problem of Coach Misconduct
Across the country, cities and towns are constructing multimillion-
dollar field houses and stadiums for their high school athletic programs,
complete with electronic scoreboards and weight rooms that rival college
athletic departments. 128 These scoreboards, along with the high-tech sound
system that accompanies it, cost upwards of $750,000. 129 In some districts,
high school football coaches have begun earning salaries over $80,000,
with some coaches commanding salaries that have reportedly started to
approach $100,000. 130 Communities in states as diverse as Pennsylvania,
South Carolina, Indiana, and Minnesota each recently spent millions of

124. Id. at 600-01.

125. See text accompanying note 98.
126. Lowery, 497 F.3d at 589.
127. See infra Part III.E.
128. Steve Wieberg, Millions of Dollars Pour into High School Football, USA TODAY,
Oct. 6, 2004, at 1A, available at http://www.usatoday.com/sports/preps/football/2004-10-
05-spending-cover_x.htm.
129. Id.
130. Id.
DONNELLY FINAL 1/13/2010 10:53:42 AM

956 NEW ENGLAND LAW REVIEW [Vol. 43:941

dollars to improve their high school football stadiums. 131 Currently, over
13,600 high schools provide organized football teams, and the majority of
these programs operate with a far more modest budget. 132
Yet as the stakes continually rise with each dollar communities spend
on sports, 133 and the behavior of those involved in youth sports continues to
worsen, 134 it is not hard to imagine more coaches putting John Maddens
sentiment into practice 135 and leaving many more student-athletes in the
same position as the plaintiffs in Lowery found themselves. 136 In a climate
of six-figure coaching salaries, million-dollar stadiums, and high-pressure
athletics, Lowery presents a more challenging dilemma, and a more
complex disciplinary environment, than the simplistic example from
Hoosiers of a player disrespecting a coach that the Sixth Circuit mentions
in its opinion as it begins its analysis of the case. 137 As the court rightly
points out, the behavior at issue in the Hoosiers example was not worthy of
any protection. 138 In Lowery, however, it was the coachs behavior as much
at issue as that of the players, and the coachs behavior in question was far
more destructive than the behavior depicted in Hoosiers. 139
In the same way that the Supreme Court in Morse relied on public
policy and data to justify a narrowly tailored addition to the jurisprudence
of free speech rights for students, 140 the Court could also create a new rule
based on the guidelines employed in whistleblower cases 141 to address a
serious public policy concern the entire country faces. In Seattle, the Seattle
Times ran a special report in 2003 specifically on the incidence of sexual
abuse of girls at the hands of their coaches, revealing that in the previous

131. Id.
132. Id.
133. Id. Tying athletic achievement closely to the reputation of a school, an assistant
principal commented, If your band programs successful and your football team wins,
thats the image your school has, even though your standardized test scores may not be the
highest. People will come to your school instead. Its a shame, but its the rules we play
under. Id.
134. See Shields et al., supra note 2, at 50, 56.
135. Winning is the best deodorant. Barcott, supra note 1.
136. Lowery v. Euverard, 497 F.3d 584, 585-86 (6th Cir. 2007).
137. Id. at 587. In the scene from the movie Hoosiers described by the Sixth Circuit, two
basketball players are talking amongst themselves as Coach Dale attempts to begin the first
day of practice. Id. After the coach addresses the troublemakers to ask them to end their
conversation, the players respond disrespectfully, and the coach immediately kicks them off
the team. Id.
138. See id.
139. See id. at 585-86.
140. See supra note 67 and accompanying text.
141. See infra Part III.E.
DONNELLY FINAL 1/13/2010 10:53:42 AM

2009] STUDENT-ATHLETE WHISTLEBLOWERS 957

ten years 159 coaches had been punished for some form of sexual
misconduct against a player. 142 In California, an abuse victim recently won
a $260,000 abuse lawsuit against a former coach who began molesting the
victim when she was in the eighth grade. 143 More recently, a high school
football coach in Alabama resigned after the School Board initiated an
investigation that revealed the following: football players received
additional retests not available to the general student body; football
players grades were changed; the coach and principal delayed reporting
several infractions of high school athletic rules to the Alabama High School
Athletics Association; and, several curious financial benefits within the
coachs contract. 144 The Shields study states that the frequency of
inappropriate behavior by coaches has been basically ignored, thus creating
a dearth of significant data. 145 These anecdotal reports may not provide the
same weight of evidence that the court cited in Morse to justify its narrow
holding restricting speech seen as promoting illegal drug use; 146 however,
the severity of the statistics in the Shields study, coupled with the anecdotal
news reports could provide a compelling public policy interest worthy of a
specific protection for student-athletes designed to ameliorate the problem
of illegal conduct by coaches. 147

B. Statutory and Common Law Protections for Whistleblowers

Across the country, every state has enacted some form of
whistleblower protection for employees. 148 All of these laws provide
protections for public or state employees, and approximately half of the
states provide protections for workers in the private sector as well. 149 The
federal government also established statutory protection for
whistleblowers, with the passage of the Whistleblower Protection Act. 150

142. Maureen OHagan & Christine Willmsen, Coaches Who Prey: The Abuse of Girls
and the System that Allows It, THE SEATTLE TIMES, Dec. 14-17, 2003, available at
http://seattletimes.nwsource.com/news/local/coaches/.
143. Sharon Noguchi, Coach to Pay Abuse Victim, District Escapes Responsibility, SAN
JOSE MERCURY NEWS, Oct. 6, 2007, at 1A, available at 2007 WLNR 19764577.
144. Jon Solomon & Erin Stock, Propst to Resign but Will Coach Playoffs, BIRMINGHAM
NEWS, Oct. 31, 2007, available at http://blog.al.com/spotnews/2007/10/
propst_to_resign_but_will_coac.html.
145. Shields, supra note 2, at 44.
146. See supra note 67 and accompanying text.
147. See infra Part III.E. Further anecdotal evidence exists, as a Google search for coach
abuse returns nearly 3 million hits.
148. See NATL CONFERENCE OF STATE LEGISLATURES, STATE WHISTLEBLOWER LAWS
(2005), http://www.ncsl.org/programs/employ/whistleblower.htm. .
149. See id.
150. See 5 U.S.C. 1201-22 (2006); Thomas M. Devine, The Whistleblower Protection
DONNELLY FINAL 1/13/2010 10:53:42 AM

958 NEW ENGLAND LAW REVIEW [Vol. 43:941

By passing this legislation, Congress recognized the important role that

federal employees play as whistleblowers, as they help to eliminate
governmental waste and corruption. 151 In addition to this protection of
federal employees, the Occupational Safety and Health Administration has
the authority under more than a dozen different laws to provide and enforce
whistleblower protections for private sector employees. 152 The nationwide
support for whistleblower protections indicate the importance Congress and
state legislatures place on protecting those who speak out against
wrongdoing by those in authority. 153 Although not in the employment
context, the actions of the plaintiffs in Lowery were a clear attempt to
express their dissatisfaction with conduct that ran afoul of Tennessee law
and social norms. 154

C. The Tennessee Public Protection Act and Common Law

Equivalent
Under Tennessee law, all employees, both in the private and public
sector, enjoy protections against termination of employment in retaliation
for reporting illegal activities, or refusing to participate in illegal
activities. 155 As defined in the statute, illegal activities mean any conduct
in violation of the criminal or civil code of Tennessee or the United
States. 156 The statute also contains specific prohibitions against using these
protections to carry out frivolous lawsuits, allowing the court the power to
grant an order forcing the employee to pay the expenses and attorneys fees
the employer incurs if the court deems the employees suit frivolous. 157
These statutory protections augment the existing common law
protections against retaliatory discharge that were already extant in
Tennessee prior to the enactment of the Tennessee Public Protection Act. 158

Act of 1989: Foundation for the Modern Law of Employment Dissent, 51 ADMIN. L. REV.
531, 537 n.25 (1999).
151. Devine, supra note 150, at 537.
152. Occupational Safety and Health Admin., OSHA Fact Sheet: Your Rights as a
Whistleblower (Nov. 2007), http://www.osha.gov/OshDoc/data_General_Facts/
whistleblower_rights.pdf.
153. See NATL CONFERENCE OF STATE LEGISLATURES, STATE WHISTLEBLOWER LAWS
(2005), http://www.ncsl.org/programs/employ/whistleblower.htm (citing the whistleblower
protection laws created by the National Conference of State Legislatures).
154. See Lowery v. Euverard, 497 F.3d 584, 585-86 (6th Cir. 2007); see infra Part
III.D.
155. See TENN. CODE ANN. 50-1-304(a)-(d) (2008); Southmayd v. Apria Healthcare,
Inc., 412 F. Supp. 2d 848, 861-62 (E.D. Tenn. 2006).
156. 50-1-304(a)(3).
157. Id. 50-1-304(f).
158. See Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 536 (Tenn. 2002).
DONNELLY FINAL 1/13/2010 10:53:42 AM

2009] STUDENT-ATHLETE WHISTLEBLOWERS 959

Under the statute, the burden of proof requires that the employee show that
the activities for which he or she seeks protection were the sole reason
for . . . termination, in contrast with the substantial factor requirement of
the common law. 159 Additionally, the statute constitutes a change in the
common law in that public employees enjoy the protection of the statute as
well. 160
Both the common law and the statute impose a four-part test in order
for an employee to prevail in a cause of action for retaliatory discharge. 161
Under the statute, the employee must show: (1) status as an employee;
(2) a refusal to participate in, or remain silent about, illegal activities; (3)
termination from employment; and (4) an exclusive causal relationship
between [the] refusal to participate in or remain silent about illegal
activities and [the] termination . . . . 162 This test varies somewhat from the
requirements under the common law.
Under the common law test for the tort of retaliatory discharge, the
employee must show: (1) the existence of an at-will employment
relationship; (2) termination of employment; (3) that the reason for [the]
discharge was that [the employee] attempted to exercise a statutory or
constitutional right, or for any other reason which violates a clear public
policy evidenced by an unambiguous constitutional, statutory, or regulatory
provision; and (4) that the exercise of these protected rights was a
substantial factor in the employers decision to terminate the employment
relationship. 163 To qualify for protection under either the statute or the
common law, the employee must show that the whistleblowing in question
served a valuable public purpose that warrants protection. 164
All employees, even at-will employees, enjoy the protections of both
the statutory and common-law rules. 165 When an employee and employer
engage in an at-will employment relationship, the rule followed by most
jurisdictions allows for termination of the contract at any time without
cause. 166 Even with these diminished employment rights, courts in
Tennessee have recognized, however, that the traditional at-will rule is not
absolute . . . . 167 This type of relationship could be compared to the

159. Id. at 537.

160. Id.
161. Southmayd v. Apria Healthcare, Inc., 412 F. Supp. 2d 848, 861-62 (E.D. Tenn.
2006).
162. Id. at 862.
163. Id.
164. See Guy, 79 S.W.3d at 537.
165. See, e.g., TENN. CODE ANN. 50-1-304(a)-(b) (Supp. 2008).
166. See, e.g., Whittaker v. Care-More, Inc., 621 S.W.2d 395, 396 (Tenn. Ct. App. 1981).
167. Guy, 79 S.W.3d at 535. The whistleblower protections that exist in Tennessee are
DONNELLY FINAL 1/13/2010 10:53:42 AM

960 NEW ENGLAND LAW REVIEW [Vol. 43:941

relationship between a player and coach, as the Supreme Court has held
that student-athletes face far greater constrictions on their rights than does
the general student population. 168 Additionally, students do not have a
constitutionally protected right to participate in athletics. 169 Yet the
extension of whistleblower protections to even at-will employees reveals an
overriding desire to promote the importance of reporting illegal conduct by
those in a position of power. 170

D. The Conduct of the Parties in Lowery Analyzed Under

Tennessee Authority
Although student-athletes do experience a circumscription of their
rights, the Lowery case should provide an example of a situation where the
otherwise limited rights could and should be expanded, since the student-
athletes whistleblower conduct could be seen as beneficial to society. 171
As the court in Guy v. Mutual of Omaha Insurance Co. explained, the
whistleblower must show that the conduct in question was valuable to the
public at large; 172 an examination of Coach Euverards actions would seem
to indicate they ran counter to accepted societal behaviors. 173 Accordingly,
the plaintiffs allegation that Coach Euverard struck one of his players
would seem to fall within Tennessees child abuse statute, and his
humiliation of them may fall within that statute as well. 174 Additionally, the
allegation that he violated Tennessee high school athletic rules by requiring
his players adherence to a year-round training program 175 would also seem
to include a violation that would warrant a whistleblowers attention. 176
Coach Euverards training demand, in effect, constituted cheating and
reflected an unfair attempt to gain an advantage over his opponents in clear
violation of the mission statement of the TSSAA. 177 Although possibly not

one example of the limitations of the at-will rule. See id.

168. Lowery v. Euverard, 497 F.3d 584, 589 (6th Cir. 2007).
169. Id. at 588.
170. See 50-1-304(a)-(b); Whittaker, 621 S.W.2d at 396.
171. Compare Lowery, 497 F.3d at 585-88, with Guy, 79 S.W.3d at 531-33, 537-38.
172. See Guy, 79 S.W.3d at 537 n.4 (quoting Wagner v. City of Globe, 722 P.2d 250, 257
(Ariz. 1986)).
173. Compare Lowery, 497 F.3d at 585 (stating that the coach allegedly hit and
humiliated his players), with TENN. CODE ANN. 39-15-401(a)-(b) (Supp. 2008).
174. See supra note 173
175. Lowery, 497 F.3d at 585.
176. See Guy, 79 S.W.3d at 537 n.4 (quoting Wagner, 722 P.2d at 257).
177. See TENN. SECONDARY SCHOOL ATHLETIC ASSOCIATION CONST. art IV, 7-8 (2008-
09 ed.), in TENN. SECONDARY SCHOOL ATHLETIC ASSOCIATION, TSSAA HANDBOOK (2008-
09 ed.), available at http://www.tssaa.org/handbook/handbook.pdf (last visited Nov. 18,
2008) (describing that there are dead periods throughout the year in which the coach cannot
DONNELLY FINAL 1/13/2010 10:53:42 AM

2009] STUDENT-ATHLETE WHISTLEBLOWERS 961

as severe as his other conduct, Coach Euverards alleged practice of

throwing out the recruiting letters of disfavored players would also seem
to run counter to the public good. 178 With the average cost of a private
four-year college estimated at $25,143 per year in the 2006-2007 academic
year, and the average cost of a public college estimated at $6585 per year
for the same time period, 179 it is unlikely that the parents of the students
whose recruiting letters were thrown out by Coach Euverard appreciated
these actions which likely jeopardized athletic scholarships. 180 Another
strong argument for the extension of whistleblower protections to the
speech of student athletes comes from the close association between
coaches and school administrators. 181

E. Proposed Additions to the Rule in Tinker

The delicate balance between a coachs need for discipline, which is
the foundation of the Lowery decision, 182 and the competing public concern
for the welfare of minor students could still be maintained with a modified
rule. To ensure this balance, the rule should place a heavy burden on the
student so that only the most grievous transgressions find their way into the
courts. Specifically, this rule should adopt a provision similar to that found
in the Tennessee statute designed to prevent and punish frivolous

contact the players regarding conditioning or practice). By requiring year-round training,

Coach Euverard was not promoting the mission statement of the TSSAA, which states:
The mission of the TSSAA is to serve its members by providing
leadership and coordination for the administration of interscholastic
athletics, which will enhance the educational experiences of students.
The TSSAA will promote participation and sportsmanship to develop
good citizens through interscholastic athletics, which provide equitable
opportunities, positive recognition and learning experiences to students
while maximizing the achievement of educational goals.
Id. at art. I, 3.
178. Lowery, 497 F.3d at 585; see also Guy, 79 S.W.3d at 537 n.4 (quoting Wagner, 722
P.2d at 257).
179. College Board, College Costs: Average College Tuition Costs,
http://www.collegeboard.com/student/pay/add-it-up/4494.html (last visited Nov. 28, 2008).
180. See Jane Weaver, Being a Good Sports Parent: Let the Kids Enjoy the Game,
Experts Say, MSNBC, Apr. 4, 2004, http://www.msnbc.msn.com/id/4556244.
181. See Lowery, 497 F.3d at 585-86. The principal of the high school attended the
coaches only meeting where the coaches decided how to deal with the petition. Id. In the
case of the Alabama coach that recently resigned, the principal was accused of colluding
with the coach to avoid reporting infractions to the Alabama High School Athletics
Association. See supra text accompanying note 144.
182. See Lowery, 497 F.3d at 587-90.
DONNELLY FINAL 1/13/2010 10:53:42 AM

962 NEW ENGLAND LAW REVIEW [Vol. 43:941

invocation of the whistleblower protections. 183 Additionally, the rule

should adopt the heightened burden of proof employees must satisfy under
the statute, requiring that the players whistleblower conduct must be the
exclusive and sole motivating factor for the retaliatory action of the
coach. 184
The proposed rule should also adopt a provision similar to that found
in the four-part test under Tennessee common law that requires the reason
for [the] discharge [to be] that [the employee] attempted to exercise a
statutory or constitutional right, or for any other reason which violates a
clear public policy evidenced by an unambiguous constitutional, statutory,
or regulatory provision. 185 This last provision would further curtail
frivolous student lawsuits and limit the protection to serious violations of
criminal law or regulatory schemes, as was alleged in Lowery. 186
Ultimately, the rule could maintain the Tinker baseline, in that the type of
student speech that remains protected does not materially and
substantially interfer[e] with the requirements of appropriate discipline in
the operation of the school and without colliding with the rights of
others. 187
By adopting these provisions, the new modified Tinker rule would
add an additional layer of analysis in situations where the speech at issue
contains elements of whistleblower conduct, as was the case in Lowery. 188
Under this new rule, the court would have to determine whether the student
speech in question could be considered a form of whistleblower conduct or
an attempt at whistleblower conduct, in that it seeks to report illegal or
inappropriate activities that the public has a substantial interest in
correcting. 189 If this condition is satisfied, the court would then have to
examine whether the discipline the student received was solely and
exclusively motivated by the students attempts to bring to light the

183. See TENN. CODE ANN. 50-1-304(f) (Supp. 2008).

184. The employee must prove that the employer was solely and exclusively motivated in
carrying out his or her retaliatory actions by the employees whistleblowing activities.
Southmayd v. Apria Healthcare, Inc., 412 F. Supp. 2d 848, 862 (E.D. Tenn. 2006).
185. Id.
186. See Lowery, 497 F.3d at 585.
187. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969) (quoting
Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).
188. See Lowery, 497 F.3d at 585-88.
189. The court could model this standard after the common law rule in Tennessee that
the reason for [the] discharge was that [the employee] attempted to exercise a statutory or
constitutional right, or for any other reason which violates a clear public policy evidenced
by an unambiguous constitutional, statutory, or regulatory provision . . . . Southmayd, 412
F. Supp. 2d at 862.
DONNELLY FINAL 1/13/2010 10:53:42 AM

2009] STUDENT-ATHLETE WHISTLEBLOWERS 963

violations. 190 Lastly, if the court finds that the student was abusing these
protections to bring a frivolous claim, the court may issue an order
requiring the student to pay the costs of the defendant school officials if
appropriate. 191
Arguably these additions would create a rule that is far more complex
and layered than the relatively simple Tinker standard. 192 The conduct in
question in Lowery, however, and in other cases that might follow a similar
fact pattern, raises far more complex questions, centered on the appropriate
conduct of adults as they supervise children, 193 than the relatively tame
conduct at issue in Tinker. 194 This added protection the proposed rule offers
could be inferred and justified from the holding in Tinker, as the Court in
that case refused to prescribe a static analysis 195 and allowed for the
content and context of the speech to factor into the judgment of the
schools response. 196 This added analysis would seem to force a court to
closely examine the content and context of the speech to ensure the
administrators regulation of speech was reasonable, an analysis Tinker
seems to support. 197
The importance of these added protections would be especially
evident when a court refuses to acknowledge the context of the speech at
issue. Throughout Lowery, the court tended to ignore the serious
allegations at the heart of the plaintiffs petition. 198 Instead, the court
repeated the idea that coaches deserve unconditional respect and a team
free from disruption. 199 The court focused on the coachs responsibility to
provide an educational environment conducive to learning team unity and
sportsmanship free from disruptions and distractions that could hurt or
stray the cohesiveness of the team. 200 The court explicitly stated that
Lowery was not a whistleblower situation because players were not
disciplined for reporting illegal behaviors, but instead were disciplined for

190. This standard would follow the standard of Tennessee statutory authority,
heightening the burden of proof found in the common law that the whistleblower conduct
need only be a substantial motivating factor in the employees discharge from employment.
Id.
191. See TENN. CODE ANN. 50-1-304(f) (Supp. 2008).
192. Tinker, 393 U.S. at 514.
193. Compare Lowery, 497 F.3d at 585, with Tinker, 393 U.S. at 513.
194. Tinker, 393 U.S. at 504.
195. See Lowery, 497 F.3d at 588.
196. See id.
197. See Tinker, 393 U.S. at 511-13.
198. See Lowery, 497 F.3d at 590-95.
199. See id.
200. Id. at 594 (quoting Wildman v. Marshalltown, 249 F.3d 768, 711 (8th Cir. 2001)).
DONNELLY FINAL 1/13/2010 10:53:42 AM

964 NEW ENGLAND LAW REVIEW [Vol. 43:941

an exercise of free speech. 201 In effect, the speech at issue in Lowery could
have been considered a form of whistleblower conduct. 202 Granted, the
petition only stated that the undersigned hated the coach, did not want to
play for him, and did not provide specific reasons for this attitude. 203
However, the courts expectation that teenage students would be
sophisticated enough to present a legally savvy document is a contradictory
position, given the expectations the court held for students throughout the
rest of the opinion. 204 On the one hand, the court expected total fealty from
students to teachers because of the student athletes inferior knowledge and
experience. 205 Yet at the same time, the court took the petition at face
value, apparently expecting a detailed legal complaint from high school
juniors 206 who were unable to spell their coachs name correctly on the
petition. 207 This evaluation of the conduct of the student athletes reveals
that either the analysis of Tinker has become too static, or courts are feeling
free to ignore the content and context of the speech at issue in derogation
of the holding in Tinker. 208
The strong language in Tinker indicates a respect for students rights
and a rejection of the type of atmosphere in the Jefferson County School
District. 209 Specifically, the Court in Tinker believed that state-run schools
should not be enclaves of totalitarianism where school officials possess
absolute authority over their students. 210 In language especially relevant to
Lowery, the court in Tinker also stated that it was suspicious of
administrative actions designed to avoid the controversy, discomfort, or
unpleasantness that flows from certain types of speech. 211 Although Tinker
did not involve speech analogous to whistleblower conduct, the strong
language reveals a bias against totalitarianism in schools and administration
of school discipline geared towards positive public relations, rather than
improving the public good. 212 At least this proposed rule would appear to
allow courts the flexibility to look at the context of the speech, in light of

201. Id. at 600.

202. See id. at 585-86.
203. Id. at 585.
204. See Lowery, 497 F.3d at 585, 588-89.
205. See id. at 588-89.
206. See id. at 600-01.
207. Id. at 585.
208. See id. at 588.
209. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (1969).
210. Id.
211. See id. at 509-10.
212. See id. at 509-11.
DONNELLY FINAL 1/13/2010 10:53:42 AM

2009] STUDENT-ATHLETE WHISTLEBLOWERS 965

the administrators actions, to determine the reasonableness of both the

speech and the response 213 a judicial flexibility the court in Lowery
declined to exercise. 214

CONCLUSION
All student speech is not created equal. 215 The already diminished
rights of a student in a school setting only decrease when he or she puts on
the athletic uniform of his or her school. 216 Criticism of, and disrespect for,
the coachs strategy and game decisions are not worthy of constitutional
protection, as [e]xecution of the coachs will is paramount. 217 At the
same time, it is unlikely that the Tinker court envisioned a country where
communities construct stadiums worth millions of dollars while struggling
to hire teachers, 218 and coaches have potentially abused millions of youth
athletes. 219 While the current state of youth and high school sports may
have been unimaginable at the time of Tinker, the Court did recognize that
student speech would take on varied forms in a multitude of unique
situations. 220 Under Tinker, school administrators are not totalitarian
leaders and the rights of students must be protected. 221 Adding to the
protections afforded by Tinker to include additional analysis when the
student speech at issue is an attempt at (or a form of) whistleblower
conduct would force the court to examine the full context of the speech to
determine the reasonableness of the administrators actions. Incorporating
elements of statutory and common law whistleblower protections into the
Tinker analysis offers the best protection against totalitarianism in the
school environment, while at the same time respecting the important
balance between a coachs need for authority and the societal interest in
preventing abuse of that authority.

213. See id.

214. See Lowery v. Euverard, 497 F.3d 584, 600-01 (6th Cir. 2007).
215. See id. at 588-89.
216. See id. at 589.
217. See id.
218. See Wieberg, supra note 128.
219. See Shields et al., supra note 2, at 56.
220. See Lowery, 497 F.3d at 588.
221. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (1969).