College Athletics, Coercion, and the Establishment Clause: The Case of Clemson Football

*J.D., University of Virginia School of Law, 2021; M.Ed., Clemson University, 2015. I am especially grateful to Professor Micah Schwartzman for sparking this research and for supporting me in the development of this Note. I also sincerely appreciate the members of the Virginia Law Review who assisted in the editing and preparation of the Note—especially Olivia Roat.Show More

Once a person turns eighteen and goes to college, do they immediately become less susceptible to the influences of those in power and their peers? The Supreme Court tells us that they do. While consistently willing to find that prayers at middle school graduations and high school football games are violations of the Establishment Clause under the coercion test, the Court has stated that adults are more mature and “presumably” less susceptible to religious coercion. Scholars and the circuit courts of appeals have taken varying approaches and arrived at different outcomes when considering adult claimants. None, however, have articulated a uniform test for adults to establish coercion. Using indicative language from the Supreme Court, this Note argues for the first time that adult claimants must show that a State action has a “real and substantial likelihood” of coercion in order to bring a successful Establishment Clause challenge. It further proposes that a spectrum of susceptibility to coercion exists under the Establishment Clause based on certain populations’ ages and respective environments.

After articulating the standard of coercion for adults and the spectrum of susceptibility to coercion, this Note applies both to a prominent example of overt incorporation of religion into a public university—the Clemson University football program. The Clemson football coaching staff unabashedly integrates religion into many aspects of the program, from Bible studies led and organized by staff to baptisms of players on the practice field. Using psychological and educational research about the effects of coaches and teammates on a college student-athlete’s values, beliefs, and behaviors, this Note argues that college student-athletes are uniquely prone to coercion and places them on the spectrum of susceptibility to coercion. Finally, it applies the standard of coercion for adults to conclude that religious aspects of Clemson’s football program are unconstitutional under the Establishment Clause.

Introduction

Situated in the small college town of Clemson, South Carolina, the Clemson University (“Clemson”) football team boasts quite a record. With NCAA College Football Playoff (“CFP”) National Championships in 2016 and 2018, consecutive CFP appearances and Atlantic Coast Conference Championships from 2015 to 2019, and at least ten wins in each season from 2011 to 2019, head coach Dabo Swinney has built a culture of success in his program around his slogan “all in.”¹ 1.National Champions, https://daboswinney.com/championships/ [https://perma.cc/9S7H-SPP4] (last visited Sept. 28, 2020); Greg Wallace, Inside a Top 10 College Football Team’s Summer Conditioning Program, Bleacher Rep. (June 6, 2014), https://bleacher­report.com/articles/2088395-inside-a-top-10-college-football-teams-summer-conditioning-program [https://perma.cc/274C-3ZG5] (internal quotation marks omitted).Show More While the students, alumni, and fans of Clemson football may consider football their religion, there is a tenet of actual sectarian religion deeply ingrained and woven into the program’s culture.² 2.Tim Rohan, Faith, Football and the Fervent Religious Culture at Dabo Swinney’s Clemson, Sports Illustrated (Sept. 4, 2019), https://www.si.com/college-football/2019/09/04/clemson-dabo-swinney-religion-culture [https://perma.cc/46JS-8ZGA].Show More As documented by the Freedom from Religion Foundation’s (“FFRF”) 2014 letter sent to Clemson’s Senior Associate General Counsel, several of the program’s practices—which originate from the coaching staff’s conduct and are not student-led or organized—indicate not only an “endorsement of religion over nonreligion,” but also a preference for “Christian worship.”³ 3.Letter from Patrick C. Elliott, Staff Att’y, Freedom from Religion Found., to Erin Swan Lauderdale, Senior Assoc. Gen. Couns., Clemson Univ. 1 (Apr. 10, 2014) [hereinafter FFRF Letter], https://ffrf.org/images/clemson_letter.pdf [https://perma.cc/Y26K-4HUA]. FFRF sent this letter to Clemson after they reviewed records obtained through a FOIA request. Id.Show More Coach Swinney has maintained an “an outwardly religious program.”⁴ 4.Kevin Trahan, Freedom from Religion Foundation Complains About Clemson Football Program, SBNation (Apr. 15, 2014), https://www.sbnation.com/college-football/2014/4/15/5616602/clemson-football-dabo-swinney-religious-freedom-complaint.Show More Quite simply, “[a]t Clemson, God is everywhere.”⁵ 5.Brad Wolverton, With God on Our Side, Chron. of Higher Educ. (Nov. 24, 2013), https://www.chronicle.com/article/With-God-on-Our-Side/143231 [https://perma.cc/7Q3G-M4PG].Show More

In 2011, James Trapp became the official chaplain of the football team at Coach Swinney’s personal invitation and insistence.⁶ 6.FFRF Letter, supra note 3, at 1.Show More In his paid role as chaplain, Mr. Trapp went beyond simply leading team prayers. He “was regularly given access to the entire football team in between drills for the purpose of bible study,” maintained an office in the Jervey Athletic Center where he kept Bibles for distribution and displayed Bible quotes, and planned and facilitated sessions on “being baptized” in the athletic center.⁷ 7.Id. at 2–3.Show More Mr. Trapp also organized more than eighty devotionals for the football team between March 2012 and April 2013, which were approved by Coach Swinney and led by members of the coaching staff.⁸ 8.Id. at 4.Show More Further, he organized the team’s transportation via coach buses to local churches for annual “Church Day[s]” during training camp.⁹ 9.Id.Show More

Journalists have reported other instances of the coaching staff’s endorsement of religion. In the fall of 2012, star wide receiver DeAndre Hopkins was baptized on the field in his uniform and pads at the conclusion of practice.¹⁰ 10.Rohan, supra note 2; see also Wolverton, supra note 5 (describing DeAndre Hopkins’s baptism in a livestock trough on the practice field).Show More Then-Assistant Coach Jeff Scott even tweeted a photo that captured the scene.¹¹ 11.Coach Jeff Scott (@coach_jeffscott), Twitter (Sept. 2, 2012, 10:14 PM), https://twitter.com/coach_jeffscott/status/24244533830313984.Show More Following Hopkins’s baptism, it is estimated that between ten and fifteen player baptisms occurred over the next two seasons—many of which took place during camp in a pond by the practice field.¹² 12.Rohan, supra note 2.Show More Coach Swinney tells recruits and their families that he is a Christian and, if they “have a problem with that, [they] don’t have to be [there].”¹³ 13.Wolverton, supra note 5.Show More One recruit’s mother distinctly remembers Coach Swinney’s guarantee “that every single player that comes through this program will hear about the Gospel of Christ.”¹⁴ 14.Rohan, supra note 2.Show More

If Clemson were a public high school instead of a public university, this situation would present a clear violation of the Establishment Clause of the First Amendment.¹⁵ 15.See Lee v. Weisman, 505 U.S. 577, 592 (1992) (“[T]here are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.”).Show More The Supreme Court has stated, however, that college students “are . . . young adults” and are therefore “less impressionable than younger students.”¹⁶ 16.Widmar v. Vincent, 454 U.S. 263, 274 n.14 (1981). Widmar was decided on free speech grounds as the Court did not find the State’s interest in creating more separation between church and state than required by the Establishment Clause “sufficiently ‘compelling’ to justify content-based discrimination against respondents’ religious speech.” Id. at 276. For further discussion of circuit courts of appeals’ application of Widmar to the coercion test in cases involving higher education, see also infra notes 110–12 and accompanying text.Show More Yet, the Court has not spoken directly on the issue of religious coercion with respect to adult college students at a public university. While the religious nature of Clemson’s football program presents only one example of overt incorporation of religion at a public university, the initial, more important, and unanswered question is what must adult claimants show in order to litigate a successful Establishment Clause challenge.¹⁷ 17.By “adult,” I mean individuals who have reached the age of majority in their respective states.Show More

Using the prominent example of Clemson football,¹⁸ 18.Clemson’s football program presents one of many examples of the incorporation of religion into college football. For examples of other football programs that have hired chaplains, see Freedom from Religion Found., Pray to Play: Christian Coaches and Chaplains Are Converting Football Fields into Mission Fields 13–15 (2015) [hereinafter Pray to Play], https://ffrf.org/images/Pray_To_Play_FINAL_REPORT1.pdf [https://perma.cc/A4QB-T8V­H]. Examples of the incorporation of religion can also be found in other college sports, such as basketball. See, e.g., Whitelaw Reid, Man of Faith: How Tony Bennett’s Religion Has Shaped His UVa Tenure, Daily Progress (Nov. 24, 2010), https://www.dailyprogress.com/­sports/man-of-faith-how-tony-bennett-s-religion-has-shaped/article_de7b70b5-54f2-5f94-bc4f-dc4449748bb8.html [https://perma.cc/CM7C-K9JR] (“As a number of recruits have signed to play for [Tony] Bennett, the first thing they’ve talked about . . . . [is] the connection they’ve felt with Bennett through God.”).Show More this Note answers that question by articulating a coercion standard for adults, arguing that a spectrum of susceptibility to coercion exists under the Establishment Clause, and suggesting where college student-athletes fit along that spectrum. While some scholars have written about the Establishment Clause and college athletics, they do not apply the modern coercion test,¹⁹ 19.The modern coercion test focuses on psychological coercion as articulated in Lee v. Weisman. See infra Section I.B.Show More articulate a coercion standard for adults, or advance a theory regarding a range of susceptibility to coercion. For example, Clayton Adams, emphasizing a need to protect a “government employee’s right to speak on matters of public concern,” applied a “modified coercion test” to religious aspects of various college football programs—including the Clemson football program.²⁰ 20.Clayton D. Adams, Personal Foul, Roughing the Speaker: The Illusory War Between the Establishment Clause & College Football, 84 Miss. L.J. Supra 167, 183, 194–202 (2015).Show More Kris Bryant suggested that the Court should adopt a “Coercion/Endorsement Test ‘with teeth’” when analyzing the Establishment Clause claims of public university students.²¹ 21.Kris Bryant, Take a Knee: Applying the First Amendment to Locker Room Prayers and Religion in College Sports, 36 J. Coll. & U.L. 329, 359–60 (2009).Show More Gil Fried and Lisa Bradley briefly suggested that there is an “Establishment Clause case law scale from elementary school prayer to prayer opening legislative sessions cases” and recognized that “college prayer cases” fall “in between these two ends of the continuum” without theorizing further.²² 22.Gil Fried & Lisa Bradley, Applying the First Amendment to Prayer in a Public University Locker Room: An Athlete’s and Coach’s Perspective, 4 Marq. Sports L.J. 301, 303, 310–13 (1994).Show More Fried and Bradley, however, then applied the now disfavored Lemon test to analyze college locker room prayers.²³ 23.Id.Show More In a similar vein, other scholars have addressed the Establishment Clause’s application to students at public universities, or adults in general, without applying the psychological coercion test, articulating a coercion standard for adults, or proposing a theory regarding a range of susceptibility to coercion.²⁴ 24.See, e.g., Phillip E. Marbury, Comment, Audience Maturity and the Object of the Establishment Clause, 6 Liberty U. L. Rev.565, 579 (2012) (arguing that “audience maturity is a significant factor” in the Court’s modern Establishment Clause jurisprudence); Elizabeth B. Halligan, Coercing Adults? The Fourth Circuit and the Acceptability of Religious Expression in Government Settings, 57 S.C. L. Rev.923, 924–26 (2006) (analyzing Mellen v. Bunting, a Fourth Circuit case that struck down a prayer at a public military university because of public prayer’s potential impact on adult audience members); Deanna N. Pihos, Assuming Maturity Matters: The Limited Reach of the Establishment Clause at Public Universities, 90 Cornell L. Rev.1349, 1373 (2005) (arguing that the respective ages of high school and college students is a “questionable distinction on which to create two different standards of Establishment Clause protection” under the coercion, Lemon, and endorsement tests).Show More

This Note addresses the gap in the literature regarding how to treat adult claimants under the coercion test of the Establishment Clause. Instead of suggesting a new or modified coercion test or using a now disfavored test, this Note articulates a practical coercion standard for adults that is rooted in the current jurisprudence. Part I of this Note traces the development of the modern coercion test in the Supreme Court and the test’s application to cases involving higher education in the circuit courts of appeals. Then, Part II proposes a coercion standard for adults and, based on their respective environments, places various populations along a spectrum according to their level of susceptibility to coercion. Finally, Part III applies the coercion standard for adults and coercion spectrum to college student-athletes. It argues that college student-athletes should be seen as more susceptible to coercion than typical college students and that various religious-oriented aspects of the Clemson football program violate the Establishment Clause. A conclusion follows.

1. * J.D., University of Virginia School of Law, 2021; M.Ed., Clemson University, 2015. I am especially grateful to Professor Micah Schwartzman for sparking this research and for supporting me in the development of this Note. I also sincerely appreciate the members of the Virginia Law Review who assisted in the editing and preparation of the Note—especially Olivia Roat. ↑
2. National Champions, https://daboswinney.com/championships/ [https://perma.cc/9S7H-SPP4] (last visited Sept. 28, 2020); Greg Wallace, Inside a Top 10 College Football Team’s Summer Conditioning Program, Bleacher Rep. (June 6, 2014), https://bleacher­report.com/articles/2088395-inside-a-top-10-college-football-teams-summer-conditioning-program [https://perma.cc/274C-3ZG5] (internal quotation marks omitted). ↑
3.  Tim Rohan, Faith, Football and the Fervent Religious Culture at Dabo Swinney’s Clemson, Sports Illustrated (Sept. 4, 2019), https://www.si.com/college-football/2019/09/04/
   clemson-dabo-swinney-religion-culture [https://perma.cc/46JS-8ZGA]. ↑
4. Letter from Patrick C. Elliott, Staff Att’y, Freedom from Religion Found., to Erin Swan Lauderdale, Senior Assoc. Gen. Couns., Clemson Univ. 1 (Apr. 10, 2014) [hereinafter FFRF Letter], https://ffrf.org/images/clemson_letter.pdf [https://perma.cc/Y26K-4HUA]. FFRF sent this letter to Clemson after they reviewed records obtained through a FOIA request. Id. ↑
5. Kevin Trahan, Freedom from Religion Foundation Complains About Clemson Football Program, SBNation (Apr. 15, 2014), https://www.sbnation.com/college-football/2014/4/15/
   5616602/clemson-football-dabo-swinney-religious-freedom-complaint. ↑
6. Brad Wolverton, With God on Our Side, Chron. of Higher Educ. (Nov. 24, 2013), https://www.chronicle.com/article/With-God-on-Our-Side/143231 [https://perma.cc/7Q3G-M4PG]. ↑
7. FFRF Letter, supra note 3, at 1. ↑
8. Id. at 2–3. ↑
9. Id. at 4. ↑
10. Id. ↑
11. Rohan, supra note 2; see also Wolverton, supra note 5 (describing DeAndre Hopkins’s baptism in a livestock trough on the practice field). ↑
12.  Coach Jeff Scott (@coach_jeffscott), Twitter (Sept. 2, 2012, 10:14 PM), https://twitter.com/coach_jeffscott/status/24244533830313984. ↑
13. Rohan, supra note 2. ↑
14. Wolverton, supra note 5. ↑
15. Rohan, supra note 2. ↑
16. See Lee v. Weisman, 505 U.S. 577, 592 (1992) (“[T]here are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.”). ↑
17. Widmar v. Vincent, 454 U.S. 263, 274 n.14 (1981). Widmar was decided on free speech grounds as the Court did not find the State’s interest in creating more separation between church and state than required by the Establishment Clause “sufficiently ‘compelling’ to justify content-based discrimination against respondents’ religious speech.” Id. at 276. For further discussion of circuit courts of appeals’ application of Widmar to the coercion test in cases involving higher education, see also infra notes 110–12 and accompanying text. ↑
18. By “adult,” I mean individuals who have reached the age of majority in their respective states. ↑
19. Clemson’s football program presents one of many examples of the incorporation of religion into college football. For examples of other football programs that have hired chaplains, see Freedom from Religion Found., Pray to Play: Christian Coaches and Chaplains Are Converting Football Fields into Mission Fields 13–15 (2015) [hereinafter Pray to Play], https://ffrf.org/images/Pray_To_Play_FINAL_REPORT1.pdf [https://perma.cc/A4QB-T8V­H]. Examples of the incorporation of religion can also be found in other college sports, such as basketball. See, e.g., Whitelaw Reid, Man of Faith: How Tony Bennett’s Religion Has Shaped His UVa Tenure, Daily Progress (Nov. 24, 2010), https://www.dailyprogress.com/­sports/man-of-faith-how-tony-bennett-s-religion-has-shaped/article_de7b70b5-54f2-5f94-bc4f-dc4449748bb8.html [https://perma.cc/CM7C-K9JR] (“As a number of recruits have signed to play for [Tony] Bennett, the first thing they’ve talked about . . . . [is] the connection they’ve felt with Bennett through God.”). ↑
20. The modern coercion test focuses on psychological coercion as articulated in Lee v. Weisman. See infra Section I.B. ↑
21. Clayton D. Adams, Personal Foul, Roughing the Speaker: The Illusory War Between the Establishment Clause & College Football,
    

    84

    Miss. L.J. Supra

    167

    , 183, 194–202 (2015). ↑

22. Kris Bryant, Take a Knee: Applying the First Amendment to Locker Room Prayers and Religion in College Sports, 36 J. Coll. & U.L
    

    .

    329, 359–60 (2009). ↑

23. Gil Fried & Lisa Bradley, Applying the First Amendment to Prayer in a Public University Locker Room: An Athlete’s and Coach’s Perspective, 4 Marq. Sports L.J. 301, 303, 310–13 (1994). ↑
24. Id. ↑
25.  See, e.g., Phillip E. Marbury, Comment, Audience Maturity and the Object of the Establishment Clause, 6 Liberty U. L. Rev.
    

    565, 579 (2012) (arguing that “audience maturity is a significant factor” in the Court’s modern Establishment Clause jurisprudence); Elizabeth B. Halligan, Coercing Adults? The Fourth Circuit and the Acceptability of Religious Expression in Government Settings, 57 S.C. L. Rev.

    923, 924–26 (2006) (analyzing Mellen v. Bunting, a Fourth Circuit case that struck down a prayer at a public military university because of public prayer’s potential impact on adult audience members); Deanna N. Pihos, Assuming Maturity Matters: The Limited Reach of the Establishment Clause at Public Universities, 90 Cornell L. Rev.

    1349, 1373 (2005) (arguing that the respective ages of high school and college students is a “questionable distinction on which to create two different standards of Establishment Clause protection” under the coercion, Lemon, and endorsement tests). ↑