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Friday, December 16, 2016

And now Princeton swimming (Updates)

It is becoming increasingly easy for someone to win the Ivy League title in various men's non-revenue sports, because there are not going to be any more teams to compete against. Harvard men's soccer had its season canceled and its cross-country team placed on probation, and Columbia's wrestling team had a game canceled. And now Princeton's men's swimming and diving had its season suspended, pending an investigation into emails and other materials on the team listserv that were "vulgar and offensive, as well as misogynistic and racist in nature."

Princeton's AD explained (and justified) the action on the ground that "[w]e make clear to all of our student-athletes that they represent Princeton University at all times, on and off the playing surface and in and out of season, and we expect appropriate, respectful conduct from them at all times." The suspicion in these student-athlete cases, including among those who might be inclined to challenge such actions, is that student-athletes are like employees speaking as employees, with virtually non-existent free-speech rights under Garcetti. The Princeton statement reflects that idea. But no actual employee works under similar constraints, in which he is an employee 24/7/365 and in all contexts. So we again have student-athletes stuck in the worst of all possible worlds--limited in the same ways as employees, but enjoying none of the benefits and protections that true employees receive.

Update: And more: Wash U.'s men's soccer team and Amherst cross country, showing this extends into Division III, as well. The Amherst team apologized.

Further Update:Michael Masinter's comments reveal the problem for the students, which I had forgotten: Employees (assuming student-athletes should be treated as such) enjoy no protection for their private speech. Which may say more about the trouble with the employee-speech doctrine than anything. Or maybe future scouting reports will include a "Go Trump" at the end.

Posted by Howard Wasserman on December 16, 2016 at 12:17 PM in First Amendment, Howard Wasserman, Sports | Permalink

Comments

It's becoming a standard code of behavior for students. In my secondary school, anybody who participated in extracurricular activities had to sign a contract that they could be disciplined for any infraction of the school behavioral code no matter where or when it occurred. In fact, one instructor had me face a disciplinary committee because I said "Damn" in a shop on Saturday in a neighboring town. As a student athlete at a non-Ivy we also had a very strict code of conduct.

Posted by: YesterdayIKilledAMammoth | Dec 17, 2016 3:07:37 AM

Cool story, mammoth!

Posted by: MarcusNeff | Dec 17, 2016 6:44:57 AM

Leaving aside the inapplicability of the first amendment to Princeton, even if you accept the analogy to public employee free speech law, isn't the more analogous case Roe v. City of San Diego? Whether speaking as citizens or employees, public employees enjoy no free speech protection for speech on a matter of private concern. In what sense are the social media posts and emails from the various teams speech on a matter of public concern? There's no need to reach the sometimes harder question of the line between citizen speech and employer speech unless the speech is on a matter of public concern.

Posted by: Michael R. Masinter, Nova Southeastern University College of Law | Dec 17, 2016 3:05:24 PM

The second sentence in the preceding post is poorly worded; it should have begun "Whether speaking as citizens or for their employer...."

Posted by: Michael R. Masinter, Nova Southeastern University College of Law | Dec 17, 2016 3:07:03 PM

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