WashU Expert: Proposed Missouri law revoking scholarships violates First Amendment

Proposed bill would require public schools to revoke scholarships for athletes who refuse to play

Two Missouri legislators have proposed a bill that would require public universities and colleges to revoke scholarships held by student-athletes who refuse to play, or incite, support or participate in a strike.

Magarian

The proposed law violates the First Amendment of the United States Constitution, says an expert on freedom of speech at Washington University in St. Louis.

“This proposed law is a classic example of a government
lashing out at political ideas it doesn’t like,” said Greg Magarian, JD, professor of law in the School of Law. “That is exactly the
kind of government tyranny the First Amendment was written to prevent.”

The proposed law provides that “any college athlete who calls, incites, supports, or participates in any strike or concerted refusal to play a scheduled game shall have his or her scholarship revoked.” It would also make “any member of a coaching staff who encourages or enables a college athlete to engage in behavior” pay a fine.

“The University of Missouri is a state school, which means the university’s athletic scholarships are government benefits,” Magarian said. “The First Amendment largely bars the government from withdrawing or denying benefits based on speech. The most basic principle of First Amendment law is that the government may not punish political advocacy.”

The state would probably be on solid legal ground, Magarian said, if it revoked the scholarships of all players who “participated in” a refusal to play a game for any reason.

But the proposed bill doesn’t cover any reason. It only applies to political action, he said.

“Presumably, the bill’s sponsors don’t want to revoke the scholarship of the player who refuses to suit up because he or she is angry over playing time, or hung over, or needs to attend to a family emergency,” Magarian said. “One of the bill’s main sponsors, Rep. Kurt Bahr, has flatly stated that the bill is ‘obviously in reaction to the athletes who were saying they weren’t going to play to what they considered to be social issues on campus.’

“That’s discrimination against a political viewpoint, a blatant violation of the First Amendment,” Magarian said.

Denying someone a state benefit because the person calls for, supports, or encourages political action categorically violates the First Amendment, Magarian said.

“The government, in some cases, may punish ‘incitement,’ but only incitement of a crime,” he said. “The government may sometimes punish ‘enabling’ unlawful action, but that term in the proposed Missouri law is hopelessly, unconstitutionally vague.”

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