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Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc.

United States Court of Appeals, Eleventh Circuit

November 13, 2019


          Appeal from the United States District Court No. 8:16-cv-02753-CEH-AAS for the Middle District of Florida

          Before TJOFLAT, MARCUS and NEWSOM, Circuit Judges.


         At the end of the 2015 high school football season, Cambridge Christian School and University Christian School faced off in the Division 2A State Championship Game, supervised and regulated by the Florida High School Athletic Association ("FHSAA"), a state actor. The two schools, both Christian institutions, asked the FHSAA for permission to conduct a joint prayer over the loudspeaker before kickoff, as they each typically did before all other games. The schools presented this request and the practice of communal prayer more generally as being tied to their religious missions and as being very important to the members of their communities. The FHSAA denied the request, citing the Supreme Court's Establishment Clause precedent and the principle of "separation of church and state."

         Cambridge Christian then brought this lawsuit in federal district court, raising a variety of claims, primarily arising under the Free Speech and Free Exercise Clauses of the United States and Florida Constitutions. The school alleged that its right to freedom of speech was violated when the FHSAA denied access to the loudspeaker for its proposed religious speech while at the same time allowing secular messages to be transmitted. It also claimed that its right to Free Exercise was similarly violated -- communal prayer was integral to its spiritual tradition and practice, and, without access to the loudspeaker system, the school was unable to unite players and spectators in communal prayer before the last and most important game of the season. Cambridge Christian asked the district court for declaratory and injunctive relief as well as damages.

         The trial court dismissed the entirety of Cambridge Christian's complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For starters, it concluded, on the Free Speech claims, that all speech over the loudspeaker was government speech and therefore that the school enjoyed no expressive freedoms in that medium. In the alternative, the court determined that the loudspeaker was a nonpublic forum and that Cambridge Christian was not entitled to access it. As for the Free Exercise Clauses, the court held that the school's free exercise rights had not been implicated when the FHSAA denied access to the loudspeaker because the teams were still allowed to pray together at the center of the football field, albeit without the aid of a loudspeaker system. Finally, the trial court denied declaratory relief under the Establishment Clauses on the ground that the controversy was more properly framed under the other clauses.

         As we see it, the district court was too quick to dismiss all of Cambridge Christian's claims out of hand. Taking the complaint in a light most favorable to the plaintiff, as we must at this stage in the proceedings, the schools' claims for relief under the Free Speech and Free Exercise Clauses have been adequately and plausibly pled. There are too many open factual questions for us to say with confidence that the allegations cannot be proven as a matter of law. The question of whether all speech over the microphone was government speech is a heavily fact-intensive one that looks at the history of the government's use of the medium for communicative purposes, the implication of government endorsement of messages carried over that medium, and the degree of government control over those messages. Here, the history factor weighs against finding government speech and the control factor is indeterminate, so, based on this limited record, we find it plausible that the multitude of messages delivered over the loudspeaker should be viewed as private, not government, speech. And while we agree with the district court that the loudspeaker was a nonpublic forum, we conclude that Cambridge Christian has plausibly alleged that it was arbitrarily and haphazardly denied access to the forum in violation of the First Amendment. Likewise, we cannot say, again drawing all inferences in favor of the appellant, that in denying communal prayer over the loudspeaker, the FHSAA did not infringe on Cambridge Christian's free exercise of religion.

         We, therefore, reverse the district court's decision in part. The lower court was too quick to pull the trigger insofar as it dismissed the appellants' free speech and free exercise claims. We cannot say whether these claims will ultimately succeed, but Cambridge Christian has plausibly alleged enough to enter the courtroom and be heard.

         We do agree with the district court, however, that Cambridge Christian has failed to plead a "substantial burden" under the Florida Religious Free Restoration Act (FRFRA) because it has not alleged that the FHSAA forbade it from engaging in conduct that its religion mandates. Thus, we affirm the district court's dismissal of the FRFRA claim. We also affirm the district court's decision in part, insofar as it rejected the school's request for declaratory relief under the Establishment Clauses.



         Cambridge Christian School is a private Christian school in Tampa, Florida, running from preschool through twelfth grade. Like many private schools, Cambridge Christian's religious mission is an integral part of its identity. The school's overall religious mission is stated this way: "To glorify God in all that [it does]; to demonstrate excellence at every level of academic, athletic, and artistic involvement; to develop strength of character; and to serve the local and global community."

         Prayer is especially important to Cambridge Christian; it is a basic part of many school activities, including its class lectures and meals, and it has been fully incorporated into the mission of the school's athletic department. The athletic department defines its mission this way: "to glorify Christ in every aspect of [its] athletic endeavors while using the platform of athletics to: Teach the Principles of Winning; Exemplify Christian Morals and Values in [its] Community; Achieve Maximum Physical, Moral and Spiritual Character Development; and Mentor Young Men and Women to Deeper Walk with Jesus." In service of this mission, Cambridge Christian has a "long-standing tradition" of beginning all sporting events with an opening prayer, led by a student, parent, or school employee, delivered using the loudspeaker at home events "and at away games when possible." The school would "not pre-select or pre-approve an official prayer" or "provide a script or any direction . . .; rather, the speakers chose and delivered their messages themselves."

         Cambridge Christian's football team played in Division 2A, which was supervised and regulated by the Florida High School Athletic Association. The FHSAA is "the governing nonprofit organization of Florida high school athletics." The FHSAA was so designated by the Florida legislature in 1997, and, because of the statutory delegation of authority, is a state actor. Fla. Stat. § 1006.20 (2016). It includes over 800 member high schools throughout Florida, many of which are private and religious in nature. Notably for our purposes, the FHSAA organizes and oversees championship games for all Florida high school athletics divisions.

         The complaint states that Cambridge Christian fielded a successful football team in 2015; they won all nine of their regular season games and made it to the Division 2A playoffs. That season, Cambridge Christian claims that it had prayed over the loudspeaker at "each home regular season game as well as [at] away games, whenever possible." In three earlier rounds of the playoffs, Cambridge Christian was the home team, and hosted the games at Skyway Park, a public facility in Tampa owned by Hillsborough County. Before each of these games, Cambridge Christian apparently was allowed to pray over the loudspeaker at Skyway Park. At the end of the season, Cambridge Christian's football team was playing in the Division 2A Florida state football championship at Camping World Stadium (formerly known as the Citrus Bowl) in Orlando. The stadium has a regular capacity of 41, 000 for football games. Cambridge Christian's opponent in the championship was University Christian School, "a school with a similar mission and traditions involving prayer."

         During a December 1, 2015 conference call with the FHSAA -- three days before the big game -- representatives of Cambridge Christian and University Christian asked to use the loudspeaker at the stadium to lead attendees in a pre-game prayer. University Christian explained that it had been allowed by the FHSAA to use the loudspeaker prior to a 2012 championship game against a different Christian school. But this year, its request was denied. The following day, Tim Euler, the Head of School at Cambridge Christian, sent an email to Roger Dearing, the Executive Director of the FHSAA, asking again that the schools be allowed to use the loudspeaker for a pre-game prayer. Heath Nivens, the Head of School of University Christian, followed up with a similar email making the same request of the FHSAA. Dearing responded later that day and said he was unable to comply with their request. He explained that the facility was a public facility, that the FHSAA was a "state actor" and, therefore that it could not permit or grant a request for pre-game prayer.

         The game was played on December 4, 2015, before a crowd of 1, 800. "Immediately prior to the start of the game, the two teams met at the 50-yard line to pray together as a sign of fellowship," Am. Compl. ¶ 50, but the loudspeaker was not allowed to be used for prayer. Fans were unable to hear the pre-game prayer due to the size of the stadium. Thus, says Cambridge Christian, "the FHSAA denied the students, parents, and fans in attendance the right to participate in the players' prayer or to otherwise come together in prayer as one Christian community." Notably, before, during, and after the game, the PA system was used by the FHSAA public-address announcer to "deliver[] various messages, including advertisements, commentary, and other communications." At halftime, each team was given seven minutes for its cheerleading squad to perform. During this time Cambridge Christian says it was permitted by the FHSAA to "take control of the loudspeaker," which the cheerleading coach used to play music from her smartphone. No apparent limitations were placed on the content of the messages the schools could and did deliver at halftime.

         On December 7, the Monday following the game, the FHSAA emailed the schools again, reiterating its decision not to allow prayer over the loudspeaker at the start of the game. The FHSAA explained that prayer before football games had been "richly debated - and decided in the courts of the United States." He referenced -- unmistakably, but not by name -- the Supreme Court's decision in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), as being "directly on point" and as established precedent preventing the FHSAA from granting the request. Doing so, the Association explained, would mean that a "state actor" was "endors[ing]" or "promot[ing] religion." The email also argued that no one had really been prevented from praying:

The fact of the matter is that both schools involved had prayer on the field, both before and after the football game. The issue was never whether prayer could be conducted. The issue was, and is, that an organization [the FHSAA], which is determined to be a 'state actor' cannot endorse nor promote religion. The issue of prayer, in and of itself, was not denied to either team or anyone in the stadium. It is simply not legally permitted under the circumstances, which were requested by [Cambridge Christian].

         The FHSAA explained its position again, in similar terms, in a press release issued the following January.[1] Cambridge Christian points to these repeated statements as evidence of an ongoing policy evincing hostility to religious expression.


         Cambridge Christian attached as exhibits to its complaint the Administrative Procedures of the FHSAA and the 2015 FHSAA Football Finals Participant Manual. At this early stage of litigation, and without the benefit of any discovery, these exhibits are critical to our understanding of the school's claims and the FHSAA's decisionmaking.

         The Administrative Procedures "govern the [FHSAA]'s interscholastic athletic programs," and "apply to all regular season contests as well as . . . Championships." They read this way about the PA system:

Public-Address Protocol. The public-address announcer shall be considered a bench official for all Florida High School State Championship Series events. He/she shall maintain complete neutrality at all times and, as such, shall not be a "cheerleader" for any team. The announcer will follow the FHSAA script for promotional announcements, which are available from this association, player introductions and awards ceremonies. Other announcements are limited to:
• Those of an emergency nature (e.g., paging a doctor, lost child or parent, etc.);
• Those of a "practical" nature (e.g., announcing that a driver has left his/her vehicle lights on);
• Starting lineups or entire lineups of both participating teams (what is announced for the home team must be announced for the visiting team); and
• Messages provided by host school management; and
• Announcements that FHSAA souvenir merchandise, souvenir programs and concessions are on sale in the facility. During the contest, the announcer:
• Should recognize players about to attempt a play (e.g., coming up to in baseball [sic], punting, kicking or receiving a punt or kick in football, serving in volleyball, etc.);
• Should recognize player(s) making a play (e.g., "Basket by Jones" in basketball, "Smith on the kill" in volleyball, etc.);
• Should report a penalty as signaled by the referee;
• Should report substitutions and timeouts;
• Must not call the "play-by-play" or provide "color commentary" as if he/she were announcing for a radio or television broadcast;
• Must not make any comment that would offer either competing team an unfair advantage in the contest; and
• Must not make any comment critical of any school, team, player, coach or official; or any other comment that has the potential to incite unsporting conduct on the part of any individual.

         The announcer should be certain of the accuracy of his/her statements before making them. When in doubt, the announcer should remain silent.

         Regarding halftime, the Administrative Procedures specify that halftimes in football games will be twenty minutes, that school bands may perform at halftime for up to eight and a half minutes per side, and that the same number of cheerleaders in uniform as cheered during the regular season may be admitted free of charge. The Administrative Procedures do not say anything about accessing or using the PA system during halftime. Dearing (the FHSAA Executive Director) later attested in a declaration that FHSAA policy allows the PA announcer "to play a musical selection provided by the school for that school's cheerleaders during their half-time performance if that school does not have a band to play the musical selection." No apparent limitations were included.

         While the Administrative Procedures govern the entire football season, the Participant Manual is specific to the state championship games which were to be held over the weekends of December 4-5 and 11-12, 2015. It was provided to Cambridge Christian either shortly before or just after their December 1 conference call. The Manual provides game day schedules, facility and game operations, sidelines access rules, and similar information that schools playing in the games would need. It set out the following schedule for the Division 2A Championship Game: The field would become available to teams at 11:37 AM. The stadium would open at 12:00, with all officials and the PA announcer in place by 12:15. Pre-game warm ups would end at 12:37, thirty minutes before kickoff. A Scholar Athlete Award would be given around that same time. The announcer would begin a pre-game script at 12:47. There would then be a presentation of colors, the Pledge of Allegiance, and a performance of the National Anthem. At 12:52, the teams would be lined up in their tunnels, and they would be introduced. Captains and officials would head to midfield for a coin toss at 1:04, and kickoff would be at 1:07.

         A form attached to the end of the Participant Manual provides some information about halftime performances. It contains a section titled "Cheerleader Information," and indicates that halftime performances would be seven minutes long. The form asks whether a cheer team from the school would be performing at halftime. The next section is titled "Band and Drill Information" and asks whether a band would perform (again, for seven minutes) at halftime, and whether the school had "a half time announcer."


         Cambridge Christian filed this lawsuit against the FHSAA on September 27, 2016 in the United States District Court for the Middle District of Florida. After amending its complaint on September 30 and moving for a preliminary injunction on the same day, the school leveled seven charges against the FHSAA. Count I alleged that since secular messages were conveyed over the state's loudspeaker, the FHSAA's policy "prohibit[ed] religious speech, and only religious speech, from being broadcast." Thus, the FHSAA had "place[d] a substantial burden on Cambridge Christian's sincerely held religious beliefs by not allowing [it] to partake in its religious tradition of pre-game prayer over the loudspeaker." The school claimed this constituted "content-based and viewpoint-based discrimination" in violation of the First Amendment. In Count I, the school sought injunctive relief against the FHSAA policy and damages under § 1983, plus fees and costs. Count II sought a declaratory judgment that the policy violated the Free Speech and Free Exercise Clauses, along with, again, injunctive relief against the Policy, damages, fees, and costs. Count III also sought a declaratory judgment that the FHSAA's policy was not required by the Establishment Clause, and, for a third time, injunctive relief, damages, fees, and costs. Counts IV through VI replicated the first three, but were brought under the Florida Constitution's parallel Free Speech, Free Exercise, and Establishment Clauses.[2] Finally, Count VII alleged a violation of Florida's Religious Freedom Restoration Act because the FHSAA "intentionally place[d] a substantial burden on Cambridge Christian's sincerely held religious beliefs by not allowing [the school] to partake in its tradition of pre-game prayer over the loudspeaker as required by its religious mission." This final count also sought injunctive relief, damages, fees, and costs.

         The FHSAA moved to dismiss the complaint, arguing that nothing in the First Amendment or in Florida's Constitution or the Florida Statutes compelled it "to engage in proselytization of audience members attending state-sponsored sporting events," and that while no one was denied the ability to express themselves through prayer, the law did not require or permit the FHSAA "to promote sectarian prayer through state-run public address systems." It emphasized "the neutral Public-Address Protocol," under which "the public-address announcer is the only one making statements and providing announcements over the public-address system," and that members of the Cambridge Christian community were not prevented from praying together on the field, but only from using a loudspeaker system to do so. The Magistrate Judge to whom the case was referred issued a Report and Recommendation (R&R) recommending that the Motion to Dismiss be granted in all respects and that preliminary injunctive relief be denied. The district court agreed and adopted the Magistrate Judge's R&R.

         The district court began its analysis by addressing Cambridge Christian's Free Speech claims. It concluded, based on a review of the complaint, that all communication over the loudspeaker during the 2A Championship was government speech, thereby eliminating all of the Free Speech claims but that, in the alternative, even if some of the speech over the loudspeaker was private speech, it occurred in a nonpublic forum where the exclusion of Cambridge Christian's requested prayer amounted to a permissible content-based restriction. The district court also concluded that the complaint failed to state a claim under the Free Exercise Clause, reasoning that the school had not been prevented from engaging in prayer. Public, communal prayer was conducted "at the most central location of the Stadium," the center of the field, and, the court reasoned, simply denying access to the PA system did not affect the school's ability to hold communal prayer or to act pursuant to its beliefs.

         The remaining claims were dealt with in quick succession. The claim for declaratory relief stating that the Establishment Clause did not require the FHSAA to bar the school from access to the loudspeaker for the purposes of prayer was dismissed because there was "no actual controversy as to this claim," and because Cambridge Christian's arguments under the Establishment Clause were better considered under the Free Exercise and Free Speech Clauses. Finally, Cambridge Christian failed to state a claim under the Florida Religious Freedom Restoration Act, Fla. Stat. § 761.03, because pre-game prayer was "required by its religious mission," and not by its ...

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