Category Archives: Constitutional Law

Does Praying Before Vols Football Games Violate The First Amendment?

By:  Richard Braun, Intern (Twitter:  @RicBraun)

Last week, the University of Tennessee decided that it would continue to allow pregame prayers at Neyland Stadium. This comes on the heels of a letter they received complaining about the public prayers, calling them unconstitutional.

The Freedom From Religion Foundation (FFRF), an atheist group based in Wisconsin, wrote the letter to the university stating that having a clergyman conduct the prayer automatically gives it a non-secular purpose that advances one religion over another.  Such prayer at a public university violates the First Amendment, according to the Foundation.

At issue here is whether the prayer violates the Establishment Clause of the First Amendment. The Establishment Clause states that “Congress shall make no law respecting an establishment of religion.” As part of this, no government action can include a preference for one religious sect over another. In order for a government action to be valid under the Establishment Clause, it must meet the so-called Lemon test that originated from the Supreme Court case Lemon v. Kurtzman. The Court in Lemon held that a government action is only valid under the Establishment Clause if it has a secular purpose, has a primary effect that neither advances nor inhibits religion, and does not produce excessive government entanglement with religion. As a public institution, the University of Tennessee must meet this standard.

As a result of this case, the prayers held at Neyland Stadium, or any event at any public university, have a high bar to meet to avoid being ruled unconstitutional. This issue of prayer before football games has reached the Supreme Court before in 2000 with the case Santa Fe Independent School District v. Doe. In this case, high school students at a public school in Texas would lead a prayer over the PA system before each varsity football game. In held that the prayer violated the Establishment Clause, the Court ruled that the policy to allow students to lead a public prayer before games by its terms encouraged religious messages. The prayer endorsed an “invocation,” which is a term typically used when asking for divine assistance.

Further, the Court held that “in cases involving state participation in a religious activity, one of the relevant questions is ‘whether an objective observer…would perceive it as a state endorsement of prayer in public schools.’” In this case, the Court ruled that, because of the text of the prayer, a student listening to the pregame prayer would perceive it as the school endorsing a religious message.

This previous ruling creates a sticky situation for Tennessee if they continue to hold a pregame prayer, as they intend to do. Applying the holding from Santa Fe, an objective observer could perceive a prayer led by a clergyman as the school promoting a particular religious message. Further, the actual content of the prayer is subject to intense scrutiny – any term with religious overtones would work against the school. The bar for proving that a prayer does not advance a particular religion is a high one that most public prayers do not meet.

For now, the Freedom From Religion Foundation has no plans to bring a lawsuit against the university. The FFRF has a history of bringing litigation actions to public entities all over the country, and they are often successful at it, often forcing towns and school districts to settle out of court. The FFRF also sent a letter to UT-Chattanooga asking them to stop conducting public prayers. Unlike UT, UT-Chattanooga actually complied with the request, and will instead offer a moment of silence before each game. Such a compromise might anger many, and indeed the ruling from Santa Fe has been extremely unpopular. However, for a school like Tennessee that likely wants to avoid any litigation, such a move might be in their best interests.

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National Association of Basketball Coaches Files Amicus Brief In Fisher v. University of Texas At Austin Case

On August 13, 2012, the National Association of Basketball Coaches, along with the Women’s Basketball Coaches Association, Black Coaches & Administrators and a group of college basketball coaches and administrators filed an amicus brief to the Supreme Court in the Fisher v. University of Texas At Austin, Et Al. case.  An amicus brief is a filing by an individual or group of individuals not directly involved with a case made to provide the Supreme Court additional information to assist the justices in deciding the case.

According to the amicus brief filed by the NABC, the outcome of the Fisher v. UT – Austin case has serious potential consequences to the role of diversity at college campuses nationwide.  The case came to the Supreme Court by way of writ of certiorari, after it was initially filed by Fisher in 2008 and subsequently rejected by the lower courts.  Fisher, a white student, was denied admission to the University of Texas.  She argues that the university’s admission decision was unconstitutionally race-based, as Texas operates both race-neutral and race-based admissions programs.  The state of Texas utilizes a “Top 10% Law,” whereby students graduating in the top-10 percent of their high schools are automatically granted admission to the state’s public universities, regardless of their race.  For those applicants who do not obtain admission under the Top 10% Law, race may play a role in a Texas public university’s admissions decision.

Current Supreme Court precedent allows universities to use race as a positive admissions factor.  While universities cannot use quota systems to promote diversity on their campuses, the Supreme Court in Grutter v. Bollinger upheld a race-conscious admissions process that also took into account numerous factors outside of race.  While the NABC does not come out clearly in support of the Grutter decision in its amicus brief, one thing is certain:  The NABC and its members believe that on-campus diversity is an important issue.

In making its argument in favor of using diversity considerations in the university admissions process, the NABC began by providing examples of how diversity issues have shaped college athletics and campuses.  The NABC argues that sport “. . . has served to illustrate the complex challenges associated with opening doors of opportunity to individuals of all races, and to men and women alike.”  The NABC uses several historical examples to illustrate this point.  First, the NABC points out that until 1967, the SEC did not have any African-American players.  The conference’s first African-American student-athlete, Perry Wallace faced taunts and death threats.  However, his teammates and coaches supported him and ultimately, Wallace obtained his degree from Vanderbilt, a law degree from Columbia and currently teaches at American University’s Washington College of Law.  In utilizing other examples of diversity in sport and teams choosing to forgo competition to take a stand against discrimination, the NABC ultimately concludes that intercollegiate athletics reaps the benefits of operating under a diversified structure.

Next, and perhaps the larger point made by the NABC, it argues that achieving true diversity is crucial for student-athletes and the broader college community.  In making this argument, the NABC notes that when universities cannot use race in admissions, “the resulting student body is often such that minority student-athletes comprise a sizable portion of all the minorities on campus.”  This issue presents the minority student-athletes with difficulty in integrating into the broader college community as they are “deprived of peers and role models from similar backgrounds with a diverse set of talents and interests” other than athletics.  Furthermore, the NABC asserts that when a college’s minority population is made up largely of student-athletes, “it also reinforces the stereotype that members of some minority groups are all athletic or are interested primarily in sports.”

While the NABC made some compelling arguments in its amicus brief, it is to be seen whether the Supreme Court considers them.  The Supreme Court is expected to hear argument in the Fisher v. UT – Austin case this fall.  Its decision in the case could very likely affect the racial makeup of college campuses in the future.

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Testimony Got Him Here: Should Roger Clemens Testify in His Criminal Trial?

Today, at a defense table in the United States District Court for the District of Columbia, sits the former Major League Baseball pitcher who won more Cy Young Awards than any other pitcher in the history of Major League Baseball.

Roger Clemens is currently on trial for six felony counts, including:  Obstruction of Congress, False Statements and Perjury.  The charges stem from Clemens’ participation in a deposition and a hearing before the United States House Committee on Oversight and Government Reform, who was at that time, investigating the use of Performance Enhancing Drugs (“PEDs”)by players in Major League Baseball.  This investigation was largely prompted by the Mitchell Report.

The Mitchell Report is a 409-page report prepared after the completion of a 21-month investigation taken on by former United States Senator George Mitchell.  It was commissioned by Major League Baseball, as Commissioner Bud Selig appointed George Mitchell to investigate the use of PEDs by Major League Baseball players.  In total, the Mitchell Report named 89 then-current and former Major League Baseball players as individuals who had taken PEDs.  Included in this list was Roger Clemens.

Throughout the time period after the publication of the Mitchell Report, Clemens has maintained he never took either steroids or Human Growth Hormone (“HGH”).  Five days after the publication of the Mitchell Report, Clemens’ agent, Randy Hendricks, issued a statement on behalf of his client indicating that he has never taken “. . . steroids, [HGH] or any other banned substances at any time in [his] baseball career or. . . life.”

Subsequently, Clemens appeared in a deposition and hearing before Congress, voluntarily, and reasserted his position that he never took steroids or HGH under oath.

The Prosecution’s case against Clemens appears to be largely based upon testimony from McNamee, as well as testimony from Clemens’ former teammate and friend, Andy Pettitte.  According to reports, McNamee will testify that he injected Clemens with steroids and HGH.  Reports also indicate that McNamee provided the government with gauze and syringes with Clemens’ DNA and remnants of PEDs on them.  Additionally, Pettitte will testify that Clemens told him he took HGH.

It appears that the Defense team has laid out a road map early to deal with both McNamee and Pettitte’s testimony, as well as the physical evidence apparently provided by McNamee.  The tactic against McNamee largely involves a blackmail theory which was laid out by Clemens’ attorney, Rusty Hardin, during a pre-trial hearing.  It appears that the defense will argue that McNamee, who was concerned with a rape investigation, feared that he would be terminated from his post as a strength and conditioning coach with the New York Yankees.  According to the Defense’s theory, this fear led McNamee to take the syringes and gauze pads he had with Clemens’ DNA on them, and contaminate them with PEDs.  As for Pettitte, it appears that the Defense will attempt to develop testimony demonstrating that Pettitte misheard what Clemens told him, and as such, never heard Clemens tell him that he took HGH.

Should Roger Clemens Testify?

Given what appears to be the strongest evidence against him in his criminal trial, as well as his Defense counsel’s strategy to counter it, the question remains, should Roger Clemens testify?

The Fifth Amendment to the United States Constitution provides in relevant part, “No person shall. . . be compelled in any criminal case to be a witness against himself.”  Thus, in a criminal case, a defendant does not have to take the witness stand to testify.

Ultimately, the decision whether or not to testify is the defendant’s alone.  However, his legal counsel can advise him as to what deciding to testify would entail, and likewise, what the ramifications of not testifying could be.

In advising a defendant facing criminal felony charges, I believe that after explaining the right granted to him under the Fifth Amendment, that Defense counsel should then explain the Prosecution’s burden of proof in a criminal trial.  In a criminal trial, the Prosecution bears the burden of proving every fact necessary to constitute the crime which the Defendant is charged beyond a reasonable doubt.  (In re Winship, 397 U.S. 358 (1970)).  Thus, if any reasonable doubt exists in the jury’s mind as to whether an element of the crime was proven, it must acquit the defendant.

Given the burden of proof in a criminal trial, in my opinion, Clemens’ decision to testify should come after the Prosecution has presented its case.  It is likely that the strategy which his Defense counsel indicated it would pursue during a pre-trial hearing could present enough reasonable doubt so that the Prosecution does not meet its burden of proof required under In re Winship.  If through cross examination the Defense is able to fully dissect the credibility of McNamee and establish that Pettitte did not hear from Clemens that he took HGH, then arguably, enough reasonable doubt exists for the jury to find for Clemens and acquit him of the charges.

However, if upon the close of cross-examination of McNamee and Pettitte by the Defense, it does not appear that McNamee’s credibility has been challenged effectively enough, or Pettitte remains steadfast in his belief that he heard Clemens tell him he took HGH, Clemens should consider testifying.  I believe that the greatest thing Clemens has going for him in this case is that he has maintained since the publication of the Mitchell Report that he has never taken PEDs.  If reasonable doubt is not thoroughly enough established at the close of the Prosecution’s case, it may be necessary for Clemens to take the stand to say once again what he did to bring him to these charges:  that he never took steroids or HGH.

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