Arkansas State University says the placement of crosses on the back of football helmets was inappropriate. The crosses were to memorialize Markel Owens and Barry Weyer. In a letter the Liberty University, the school said it would not restore crosses bearing the initials of the two former students, but it say that players will be allowed to remember the two students in their own way. Read the full context of the letter below. The letter is addressed to Hiram Sasser, Director of Strategic Litigation at Liberty Institute.
Dear Mr. Sasser,
Please let this letter serve as Arkansas State University’s (“ASU”) response to your correspondence dated September 15, 2014.
Upon receiving your letter, we consulted the Office of the Arkansas Attorney General. Your letter contends that ASU has violated the Free Speech Clause and Establishment Clause of the First Amendment to the U.S. Constitution. In our view, your contentions are based on a faulty understanding of the facts. Once the facts are properly explained, it will be clear that the decals on ASU football helmets were not student speech. Rather, the decals constituted government speech. Further, the decals were modified from their original form precisely to avoid violating the Establishment Clause.
Background
Just before the 2014 football season began, 15 players from the ASU football team (collectively known as the head coach’s “Leadership Council”) and the entire football coaching staff jointly decided to memorialize Markel Owens and Barry Weyer. The head coach—not the football players, as your letter indicates—designed the memorial, which was a white cross bearing the initials of the two deceased students at opposite ends of the horizontal bar of the cross.
After the head coach designed the cross, he showed it to the members of the coaching staff and Leadership Council. They all jointly approved the memorial and decided to place it on the helmets of all players. They placed an order for the appropriate number of decals to be paid for with public funds from the team’s equipment fund.
Contrary to your letter, the students themselves did not affix the stickers to their helmets. Rather, the stickers were affixed to the football helmets in two stages. At the end of one practice, the team—all the coaches and players—held a team ceremony in honor of the two former students at which time a single decal was affixed to a single helmet. All the remaining officially-designed and publicly-funded decals were affixed to the helmets by the team’s equipment managers.
The foregoing facts are in stark contrast to the misinformation contained in your letter stating that the “students designed the helmet sticker,” that “[e]ach teammate affixed the sticker to his helmet”, and that the “stickers were designed by and adopted by the students on their own.” On the contrary, the sticker idea originated among the coaches and the coaches’ small group of football players on the Leadership Council. The sticker was designed by the head coach, intended to be purchased with public funds, and affixed to the helmets by the team’s equipment managers.
The foregoing was all done without the advice of counsel. When this was brought to the attention of ASU’s administrative and legal officials, the decals were modified so that they were a single, horizontal bar that continues to bear the initials of the former students. This was done, of course, to avoid Establishment Clause concerns.
The Stickers were Government Speech, not Student Speech
Turning to the issues raised in your letter, the foregoing facts make clear that the stickers were officially sponsored. Accordingly, when the school modified the stickers to avoid Establishment Clause concerns, no student speech was infringed.
Actions taken by the University in this matter were solely for the purpose of adhering to the U.S. Constitution and U.S. Supreme Court precedent. At no time was it ever our intention to limit the free speech of our student-athletes. The University strongly believes in the rights of our students to freely express their beliefs.
No university policy currently exists that addresses items displayed on athletic uniforms. However, in the interest of allowing our student-athletes to memorialize their fallen colleagues, Markel Owens and Barry Weyer, it is the university’s position that any player who wishes to voluntarily place an NCAA-compliant sticker on their helmet to memorialize these individuals will be able to do so. The display of these stickers will be totally voluntary and completely independent of university involvement. The university will not procure stickers, purchase them, or affix them to the helmets.
Based on your conversation with our counsel, we understand that this will resolve the matter. Thank you for your letter and your interest in Arkansas State University. If you have any further questions about this matter, do not hesitate to contact me.
This letter was signed by Arkansas State University System President Dr. Charles Welch and by Dr. Lucinda McDaniel, with University Council.
