There is a new free speech case filed against a university this month. A former Illinois State University (ISU) assistant football coach, Kurt Beathard, has sued IS head coach and the school’s former athletic director. Both are being sued in their official capacities for Beathard’s termination after he removed a Black Lives Matter poster from his door and replaced it with poster that read, “All Lives Matter to Our Lord and Savior Jesus Christ.” The case raises significant free speech issues and could result in an important ruling under the First Amendment.
Beathard worked for roughly 25 years as a football coach. He was successful at ISU as an offense coach including the season of this controversy. Indeed, he was asked back to ISU to rebuild the offense. This is how his complaint describes what then unfolded:
15. In late Spring/early Summer 2020, Beathard’s wife became very sick with cancer and passed away on 6/13/20.
16. In late Summer 2020, Beathard returned to ISU. The campus community was dealing with tension resulting from the death of George Floyd.
17. By this time, Black Lives Matter was a movement on the ISU campus. Spack brought Beathard up to speed about the atmosphere on campus and informed him that “Black Lives Matter is freaking nuts.”
18. Throughout his career, Beathard has successfully worked with young men of all races. While he believes black lives matter, he is opposed to the Black Lives Matter organization because it was founded by self-described “trained Marxists,” it divides human beings by skin color, and it supports violence and property destruction.
19. During mid-August 2020, ISU’s Department of Athletics printed Black Lives Matter posters. Several football coaches put Black Lives Matter posters on their office doors. Someone put a Black Lives Matter poster on Beathard’s office door.
20. Beathard removed the Black Lives Matter poster from his office door and replaced it with his own message: “All Lives Matter to Our Lord and Savior Jesus Christ.” Beathard’s poster was on his office door for less than two (2) weeks.
21. On or about 8/27/20, Lyons addressed ISU’s student athletes via zoom. During his address, in a well-intended attempt to foster unity, Lyons stated: “All Redbird Lives Matter.” Lyons’ statement was not well-received by the student athletes, and he became embroiled in controversy and apologized. (Coincidentally[?], Lyons announced his retirement approximately one (1) month later.)
22. On or about 8/29/20, Spack came to Beathard’s office and asked him to remove his poster – “All Lives Matter to Our Lord and Savior Jesus Christ.” After considering Spack’s request, Beathard removed his poster, and Spack thanked him.
23. By 8/30/20, some student athletes had put together a list of demands, one of which was that the Department of Athletics must publicly support Black Lives Matter.
24. On 8/31/20, the Department of Athletics responded by issuing an “Action Plan for Social Change,” wherein it announced its public support for Black Lives Matter. The Plan also promised “education” for Lyons, all athletic administrators, and coaches on “diversity, equity, and anti-racism.”
25. Meanwhile, another coach who wanted to replace Beathard as offensive coordinator had taken a picture of Beathard’s poster and shared it with the football players. Apparently, the picture upset some of the football players.
26. On 9/1/20, some of the football players boycotted practice. Spack came to Beathard’s office and informed him that it looked like Lyons was going to keep his job but that Beathard was in trouble over the poster.
27. On the morning of 9/2/20, Spack called Beathard into his office and informed him that he didn’t “like the direction of the offense” and that he was being terminated from his position as offensive coordinator. Spack’s explanation was 100% pretext. The offense had thrived under Beathard, and Spack had never complained about the direction of the offense.
28. Spack’s decision to terminate Beathard was authorized and supported by Lyons.
The obvious defense is that Beathard was fired over his performance as a coach. College football, like professional football, is notorious for staff changes both during and at the end of seasons. Coaches often are held accountable for the failures of a team. This could force a jury to delve into the relative strength of the offense to address the allegations of a pretextual termination.
This is why discovery is so key in these cases. Documents and depositions will indicate whether the signage controversy was the impetus for the termination rather than the performance of the offense on the field.
The other problem is the boycott and whether, regardless of the merits, the offense had broken down due to the conflict between Beathard and his players. Yet, the university guarantees employees that they retain free speech rights and, as a state school, Beathard has the protections afforded under the First Amendment.
Under the ISU Anti-Harassment and Non-Discrimination Policy, Beathard is guaranteed free speech:
“Illinois State University … is strongly committed to the ethical and legal principal that each member of the University Community enjoys the right to free speech. The right of free expression and the open exchange of ideas stimulates debate, promotes creativity, and is essential to a rich learning environment… As members of the University Community, students… and staff have a responsibility to respect others and show tolerance for opinions that differ from their own…”
The school however adds that “The value of free expression, however, may be undermined by certain acts of harassment and discrimination that may result in the deterioration of a quality learning, work, or campus community environment and therefore will not be tolerated.”
Beathard’s sign is not on its face an act of harassment or discrimination. It is the expression of a broader anti-discrimination viewpoint. I can understand why many feel that such broader expressions take away from the focus on black lives. That is a common objection but it is an objection that can be expressed within the same speech-tolerant environment that allows Beathard to share his own views and values.
That is why the university could be in a bind and may want to avoid a fight over the sign itself. It arranged for pro-BLM posters to be made available and had no problem with those who posted them on their doors. Yet, it was clearly not happy with the posting of an alternative message.
We have seen similar controversies arise at schools involving the removal of Blue Lives Matter flags, the barring of the sale of Back the Blue materials, or expressing “All Lives Matter.” (here and here and here). There is little clarity at most schools in the support for one cause and the opposition to another. That is the definition of content-based speech regulation. In some cases, faculty have been suspended or sent into training or education programs for racial sensitivity or put under investigation. Students have been suspended for saying “All Lives Matter.”
Conversely, we recently saw the suspension of a yearbook staff after it committed a section to Black Lives Matter. Likewise, two students were allegedly suspended for wearing Black Lives Matter shirts to school.
The key from a free speech perspective is neutrality. If one message is allowed, so too must be opposing or different messages. If you print or allow BLM posters to be posted on doors, you also must allow posters expressing alternative values. Many people do not support the BLM organization while supporting the underlying cause. Recently, for example, BLM announced a boycott of any white business during the holidays, a move viewed by many as racially discriminatory and socially divisive. Some people may feel uncomfortable with supporting BLM over past controversial positions (including past criticism of the “nuclear family structure”), but want to speak against all forms of discrimination.
In the end, my preference will come as no surprise to regulars on this free speech blog. I support faculty and students in displaying BLM posters and flags. I also support alternative messages and imagery. Free speech is the life’s blood of higher education. Tolerance for a diversity of values allows our schools to foster robust intellectual exchange. The worst situation is for schools to push or sponsor one viewpoint while harassing or punishing those with opposing viewpoints.
The Beathard lawsuit could force these issues into open court as the judge and jury address the rivaling claims.
Beathard brought the lawsuit under 42 U.S.C. 1983 alleging First Amendment retaliation/viewpoint discrimination. He is seeking declaratory and injunctive relief; nominal damages; compensatory damages; reinstatement with backpay; punitive damages; and attorney fees, expenses, and costs pursuant to 42 USC § 1988.