Arkansas State University called an audible and decided to reverse its decision banning memorial crosses that football players had placed on their helmets to honor two fallen teammates.
The team had been ordered to either remove or modify the small cross decals, honoring former player Markel Owens and former team equipment manager Barry Weyer, following complaints that the cross violated the Establishment Clause of the U.S. Constitution.
“It is the university’s position that any player who wishes to voluntarily place an NCAA-compliant sticker on their helmet to memorialize individuals will be able to do so,” the university announced in a letter.
Liberty Institute, a law firm that specializes in religious liberty issues, had given the university until Wednesday to reverse its decision or face a possible lawsuit. They represented one of the ASU football players.
“This is a great victory for the players of Arkansas State University,” said Hiram Sasser, director of litigation for Liberty Institute. “The university officials and the Arkansas Attorney General did the right thing restoring the religious liberty and free speech rights of the players to have the original cross sticker design if they so choose and we commend them for doing so.”
However, (and this is a big however), the university maintains they had a rock solid reason to ban the crosses in the first place. They denied they violated anyone’s constitutional rights.
The decals on the helmets “were not student speech,” ASU legal counsel Lucinda McDaniel wrote in a letter to Sasser. “Rather, the decals constituted government speech.”
The crosses drew the ire of a Jonesboro, Arkansas attorney along with the Freedom From Religion Foundation, a Wisconsin-based atheist group.
“The crosses appeared to confer State’s endorsement of religion, specifically Christianity,” the FFRF wrote. “The inclusion of the Latin cross on the helmets also excludes the 19 percent of the American population that is non-religious.”
The team had worn the cross decals for two football games - without any complaints. And to the best of my recollection, the decals did not spark a Billy Graham-style revival meeting nor did fans bombard the field during halftime seeking to be baptized.
To make matters even worse, perpetually offended FFRF co-presidents Annie Lauire Gaylor and Dan Barker went so far as to suggest alternative ways for the football players to mourn.
“Many teams around the country honor former teammates by putting that player’s number on their helmets or jerseys, or by wearing a black armband,” they wrote in a letter to the University. “Either of those options, or another symbolic gesture free from religion imagery, would be appropriate.”
Fearing a potential lawsuit, McDaniel suggested the cross be modified into a makeshift mathematical plus (+) sign -- because apparently nothing says “In Memoriam” like applied mathematics.
Liberty Institute claimed the cross memorial was perfectly legal and had been designed by students. However, ASU said the design was in fact created by the head coach. The memorial was jointly approved by members of the team’s leadership council as well as members of the coaching staff — and paid for with public funds.
And here’s the biggest oops — the coaching staff did all that without consulting with the university’s legal department.
“When this was brought to the attention of ASU’s administrative and legal officials, the decals were modified so that they were a single, horizontal bar that continues to bear the initials of the former students,” McDaniel wrote. “This was done, of course, to avoid Establishment Clause concerns.”
In the university’s opinion, the memorial stickers were “officially sponsored.”
“At no time was it ever our intention to limit the free speech of our student-athletes,” McDaniel wrote. “The university strongly believes in the rights of our students to freely express their beliefs.”
Sasser concedes the coaching staff messed up. Nevertheless, he’s glad ASU is going to let the players honor their fallen teammates.
“The correct solution is for Arkansas State University to get out of the way and let players place the stickers on the helmets if they so choose,” he told me.
How sad, though, that we live in a nation where it is against the law for a university football coach to design a memorial that includes a religious icon.
To wrap things up in Jonesboro, Arkansas - the kids could have the stickers affixed to their helmets by Saturday’s game. And the university made it abundantly clear that not a single penny of public money will be used to fund the memorial.
“The display of these stickers will be totally voluntary and completely independent of university involvement,” McDaniel wrote. “The university will not procure the stickers, purchase them or affix them to the helmets.”
How about that for a bucket load of Grade A legalese?
While they’re at it, maybe they can procure a spine and affix it to some of those intellectual eggheads.
Todd Starnes is host of Fox News & Commentary, heard on hundreds of radio stations. His latest book is "God Less America: Real Stories From the Front Lines of the Attack on Traditional Values." Follow Todd on Twitter@ToddStarnes and find him on Facebook.