The eyes of the free speech community are upon Texas this month. Last week, the Texas Tribune reported that University of Texas athletic officials commanded Longhorn football players to remain on the field after games last season for the traditional alma mater performance. Players have long gathered postgame as a unit in front of fans, giving the “Hook ’Em Horns” salute and singing along while the band plays “The Eyes of Texas.” But players bucked the trend last fall, leaving the field before the band struck up after multiple games in objection to the song’s historical ties to minstrel shows. The team subsequently reverted to staying on the field for the song.
Multiple players received threats from fans for refusing to participate in the ritual. And according to emails uncovered by the Tribune, at least 75 wealthy donors were so upset that they threatened to pull millions of dollars in donations. Athletic director Chris Del Conte denied that school officials had made players remain on the field in response to the donors’ demands. “We simply asked for their help—no one was forced or required to do so,” he said in a statement. The university adamantly stood behind the song, a decision that university president Jay Hartzell cast as a vindication of free speech principles.
On Tuesday, the university published a committee report on the song’s history and the recent controversy. The report concluded that the song, despite debuting at a 1903 minstrel show, “had no racist intent in that it was intended to parody the famous phrases of the university president.” The song will continue to be played at games. But Hartzell acknowledged at a press conference that, going forward, student involvement will be optional: “Whether it’s the case of the athletes standing on the field, or the fans in the stands as we sing, there’s going to be no punishment, no mandate, no requirement if people choose not to participate.”
That concession is legally significant, because the First Amendment applies to UT (including its athletic department) as a public institution. That status means there are strict limitations on administrators dictating players’ expressive activity. The Supreme Court has read into the First Amendment a right of association and its corollary, a right not to associate. As a result, the government—and government institutions—generally can’t compel people to support an unwanted idea.
That includes students. The leading case to that end is a famous Supreme Court decision from 1943, West Virginia State Board of Education v. Barnette. The case considered whether schoolchildren could refuse to participate in the pledge of allegiance. Marie and Gathie Barnette, sisters and Jehovah’s Witnesses, did so for religious reasons and were expelled. The court ruled that the state law at issue, which mandated saluting the flag and reciting the pledge, violated the First Amendment. Justice Robert Jackson famously waxed poetic about how coerced uniformity of sentiment could not be squared with the First Amendment’s right to speak freely.
In 1977, Wooley v. Maynard further drove home the point. That case involved another Jehovah’s Witness, George Maynard, who had been repeatedly convicted for covering up the state motto on his New Hampshire license plate. The plates were embossed with the state slogan “Live Free or Die,” and Maynard argued that he found the words morally, religiously, and politically abhorrent. The Supreme Court ruled in his favor, reaffirming that the freedom of thought protected by the First Amendment includes the right to refrain from unwanted association with the government’s preferred ideas.
There’s an underlying logic to these decisions. Most fundamentally, people shouldn’t have to endorse a belief with which they disagree. There’s also a concern that compulsory association with an idea might lead to indoctrination or confusion—that it could influence the way a person thinks about that idea, or the way others think about it based on their perception of that person’s association with it. When someone is made to speak unwillingly, we worry about both the speaker and the listeners.
For these reasons, Longhorn players can’t be prodded to observe the school’s alma mater. If they disagree with the message that they think “The Eyes of Texas” conveys, administrators and coaches cannot force them to back that message. Del Conte commented in October that he expects that UT athletes will “show appreciation” for the team’s university, fans, and supporters. And new coach Steve Sarkisian insisted in January that his team would sing the song “proudly” after games. The school’s pivot this week indicates a recognition that these expectations were unenforceable. If UT were to take away scholarships, reduce playing time, or even assign extra conditioning to players who refused to stay on the field for the song, it would run afoul of the Constitution.
The case law left little wiggle room for UT. Forcing students to congregate for the alma mater in front of fans (and perhaps a TV audience) for the purpose of communicating the school’s chosen message is at least as offensive to free speech values as forcing them to salute the flag and recite the pledge of allegiance in a classroom, as in Barnette. And it seems like a more serious infringement than the license plate requirement the Supreme Court struck down in Maynard. The analysis wouldn’t change if players were only forced to stay on the field but not sing, as Del Conte reportedly ordered in October. The team standing in unison before the band is itself an expressive act, which everyone involved well recognizes.
The controversy is part of a broader national struggle over student athlete dissent. Last month, the Tennessee Senate’s Republican Caucus sent a letter to the leaders of the state’s public colleges and universities imploring them to ban student athletes from kneeling during the national anthem. The East Tennessee State University men’s basketball team and University of Tennessee women’s team have both taken the knee before games this season. The letter carries an implicit threat of funding cuts if policies aren’t taken to keep players on their feet. While the issue in Tennessee (players engaging in expression) is different than that in Texas (players avoiding it), the underlying First Amendment problem is the same. As other commentators have noted, neither state legislators nor school administrators can curtail players’ protest rights. At least one federal court has enjoined a school district’s attempt to force high school athletes to stand for the anthem.
The calculus is different for private citizens like UT’s influential donors. Some reportedly had UT administrators convey to players that anyone who left the field before the song would find himself unemployable in Texas after graduation. Petty as powerful businessmen threatening college students may be, it is beyond the Constitution’s purview. The First Amendment does not apply to private employers.
But it does demand the outcome the school announced on Tuesday. A public university cannot use students as a tool to convey its own message. Whether the team stays on the field for “The Eyes of Texas” is for the athletes alone to decide. “The Eyes of Texas are upon you/ You cannot get away/ Do not think you can escape them,” goes the song. For Longhorn players, the Constitution promises otherwise.