Sunday, March 11, 2018

The Black 14

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Directed by Darius Clark Monroe and executive produced by Spike Lee, this documentary short tells the story of what happened when a group of college athletes decided to protest a long-standing racial injustice.

Watch it HERE

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The Black 14: Williams v. Eaton
   
A Personal Recollection
uwyo.edu by James E. Barrett

More than 26 years ago, I was involved in an incident that shook the University of Wyoming and the entire State of Wyoming. It changed the fortunes of the Wyoming football program and that of many student-athletes enrolled in the program. This is my story of the “Black 14.”

On Thursday, Oct. 16, 1969, I was serving my third year as Wyoming Attorney General. At the University of Wyoming late that afternoon, following football practice, Joe Williams, a Black tri-captain, contacted Head Coach Lloyd Eaton and informed him that the Black football players planned to wear black armbands during the football game scheduled to be played in Laramie, between Wyoming and Brigham Young University on Saturday, Oct. 18, 1969. Prior thereto, on Oct. 14, 1969, Coach Eaton had received a hand-delivered copy of a letter written by Willie S. Black, chancellor, Black Student Alliance on the campus, objecting to racist beliefs of the Mormon Church, and demanding that the University of Wyoming refuse to permit the use of its facilities to host BYU and that WAC athletic directors refuse to schedule games with BYU as long as the church continued its racist policies.
Williams told Eaton that the reasons for the armband protest were the religious beliefs of the Church of Jesus Christ of Latter Day Saints (Mormon Church), which owns and operates Brigham Young University, that Blacks could not achieve the priesthood and were denied other areas of church worship. Eaton informed Williams that the armbands were not to be worn during the game, that the football field was no place for a religious demonstration, and that the Black players could vent their resentment on the playing field during the game. I obtained this information from Coach Eaton. Apparently, the fourteen Black football players met the evening of Oct. 16 and determined that they would wear the armbands on their uniforms during the Wyo-BYU football game, regardless of Coach Eaton.

The following morning, Friday, Oct. 17, 1969, the fourteen Black football players, wearing black armbands, went to the athletic department and asked to meet with Coach Eaton. A meeting was held in the fieldhouse during which remarks were made by the Black players regarding the Mormon Church and its racial bias against Blacks. One of the players remarked that he was preparing to join the church. Thereupon, Coach Eaton responded to the effect, “Isn’t that something? You plan to join that church and abide by its beliefs for the rest of your life but you plan to demonstrate against it tomorrow.” Eaton stated to the players that religious protests could not play any part in college football. The meeting ended after Coach Eaton, convinced that the fourteen were insistent on wearing the black armbands during the football game, notified the fourteen that they were no longer members of the football squad. I obtained this information from Coach Eaton. The media tabbed the incident as the "Black 14.” It resulted in prolonged litigation known as Williams v. Eaton. The incident and case received extensive national and international attention and was the subject of many articles.

Live testimony given by the Black football players and affidavits executed by them tell a different version of the fieldhouse meeting on Oct. 17, 1969. That testimony was that the fourteen Black players had come to Coach Eaton’s office that morning simply to discuss the matter with him and to obtain his advice. Some stated that if Eaton had told them not to wear the armbands, they would have followed his advice. Instead, they said, the meeting in the fieldhouse lasted only about five minutes, during which Coach Eaton made racist remarks such as that they could go back to Black welfare. They contend that Coach Eaton refused to talk with them and that he discharged them from the team without regard for their feelings.

Soon after the terminations, Willie Black, Joe Williams and other demanded to be heard out by the President of the university, William D. Carlson. President Carlson met with Athletic Director Glen J. “Red” Jacoby and then with Willie Black, Williams and the other affected players. As a result, Gov. Stanley K. Hathaway was contacted and a decision was made by C. E. “Jerry” Hollon, President of the Board of Trustees, to call an emergency meeting of the University Board of Trustees in Old Main on the campus Friday evening, October 17. Unfortunately, a snow storm developed that day, preventing some board members from attending. However, all but one member of the board participated in the meeting, either in person or by speakerphone. Governor Hathaway was present. Jerry Hollon presided over the meeting.

The meeting of the Board of Trustees was thorough and exhausting. It lasted until about 4:30 a.m. on October 18, 1969. Governor Hathaway, President Carlson and the Board met with Coach Eaton, Athletic Director Jacoby and the coaching staff for about an hour and fully explored all of the facts and circumstances of Coach Eaton’s dismissal of the Black fourteen. They then met with the Black fourteen and Willie S. Black and fully heard from each of them. That meeting lasted in excess of two hours. 

Finally, at the request of the fourteen, Governor Hathaway, accompanied by President Carlson, met with the fourteen in an adjacent room in Old Main. Governor Hathaway again inquired of them whether they insisted upon wearing the armbands during the football game. Governor Hathaway had predicated the question with his observation that the state and the university could not condone or support a demonstration against any religion or otherwise interfere with freedom of religion. Even so, the fourteen insisted on the right to wear the armbands during the game. In addition, four or five of the fourteen responded negatively when Governor Hathaway asked whether, disregarding the BYU game, they would return to the Wyoming football team. None of the fourteen indicated that he would return to the football team if Coach Eaton remained as head coach. Willie Hysaw, one of the fourteen, asked Governor Hathaway whether he was a racist.

After the meeting with the fourteen players, Governor Hathaway and President Carlson returned to the Board meeting room and reported the conversation to the Board. The Board then voted unanimously to support Coach Eaton’s action, and, at the same time, to offer the fourteen Black athletes continuation of their athletic scholarships to the end of the semester and other scholarships if they desired to continue with their education at the university thereafter. The fourteen were informed of this immediately. I ob­tained this information from Governor Hathaway, President Carlson, Jerry Hollon, Alfred M. Pence, William R. Jones, and Eph U. Johnson, members of the Board of Trustees. 

When I was informed of the situation in the early morn­ing of October 18th, my first thought was that the univer­sity could not permit any of its representatives - and I knew that the WAC Code described student-athletes as “official representatives of their institutions” - to use its playing field to protest against a church or religious belief. I believed that if Wyoming officials knew, as they did in this case, that the purpose behind the armband display was to protest religious beliefs, they were obligated to prevent it. In my mind, the First Amendment to the United States Constitution guaranteeing freedom of speech was subservient, in this case, to the principle of complete neutrality in matters of religion.  It is well here to recall that the First Amendment provides:

Congress shall make no law respecting an estab­lishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech; or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

I was aware that Art. 21, Sec. 25 of the Wyoming Constitution guarantees perfect toleration of religious sentiment and provides that no inhabitant of Wyoming shall ever be molested in person or property on account of his or her mode of religious worship and that Art. 1, Sec. 18 guarantees free exercise of religion and worship without discrimina­tion or preference. I knew that the Supreme Court of the United States had mandated that governments must display neutrality toward religion and religious institutions, rather than hostility, and that the neutrality required need not stem from callous indifference to religion, but may at times be benevolent.1  

The Supreme Court made it clear that the Establishment Clause of the First Amendment prohibits governments from: making laws establishing religion; tak­ing action preferring one religion over another; taking action preferring religion generally as against non-belief; and exercising legislative power respecting religious beliefs or their expression.2 I recalled that the University is an agency or arm of the State.3

Within several days after the Wyoming-BYU football game, I was informed that Mr. William Waterman, an attorney who represented the NAACP, of Pontiac, Michigan, was on the Wyoming campus investigating the case on behalf of the fourteen black student athletes. I was told that Mr. Waterman had been received enthusiastically and sympathetically by most of the faculty of the University of Wyoming College of Law, and that he spent about a week on the campus. He had handled considerable civil rights litigation for the NAACP.

On October 30, 1969, Mr. Waterman, joined by Cheyenne attorneys, Charles E. Graves, J. R. Smyth, and Weston W. Reeves called at my office in the Capitol building in Cheyenne. Mr. Waterman informed me that this visit was a “last chance” for the state and the university to remedy the wrong done to the fourteen Black players’ First Amendment rights of free speech and expression. He stated that in order to avoid a lawsuit, it was necessary that the fourteen be immediately restored to the football team without condition, that Coach Eaton’s “no demonstration” rule be abolished, there be no further interference with their protest movement, and that Coach Eaton be fired.

Mr. Waterman proclaimed that the case was absolutely controlled by the Supreme Court’s decision in Tinker v. Des Moines School District.4 In that case, the Court upheld the First Amendment right of school students to wear black armbands in protest of the Vietnam conflict, absent any evidence of disruption of normal school routine or impingement upon the rights of other students.

In light of the fact that Mr. Waterman was using the occasion of our first meeting to deliver a series of ultimatums, not the least of which was the firing of Wyoming’s highly respected football coach, I concluded that Mr. Waterman was oblivious to the First Amendment’s command that the state and its officials must maintain strict neutrality in matters of religion and religious beliefs, and that, in particular, they cannot condone, support or permit the use of state facilities to display hostility toward any church or any religion. It seemed to me that Mr. Waterman was so singularly focused on the freedom of speech provisions of the First Amendment that he was blinded to the First Amendment’s religious neutrality requirements. In response, I stated that the demands were unacceptable to my clients but that Coach Eaton was ready and willing, at any time, to meet with the fourteen individually to explore the possibility of their reinstatement to the team. Mr. Waterman stated that there would be no such meetings.

Oddly, however, he volunteered that he was convinced that “there is not a discriminatory bone in Lloyd Eaton’s body.” That same afternoon, Mr. Waterman filed a 42 U.S.C. § 1983 civil rights lawsuit on behalf of the fourteen in the United States District Court for the District of Wyoming in Cheyenne, which, in legal jargon, was titled “Williams v. Eaton,” wherein the black fourteen were plaintiffs and the state, the university, President Carlson, Coach Eaton, members of the Board of Trustees and Red Jacoby were the defendants. After filing the suit, Mr. Waterman held a press conference. Remarks were made with racial overtones. It is important to recall, however, that the civil rights complaint did not contain a single allegation of racial discrimination. The primary, principal grievance was that the fourteen had been denied their First Amendment right of free speech and expression. The complaint sought money damages of $75,000 for each plaintiff totaling $1,050,000 and punitive damages of $50,000. It also sought injunctive and declaratory relief asking the court to order the players’ re­instatement to the football team without conditions. Paragraph 18 of the complaint alleged that:

Plaintiffs will suffer further irreparable harm from the unlawful suspension and dismissal in that their ability to promote their careers, practice and perform their skills has been denied them, and the said dismissal has caused them to lose their chance to be observed by professional scouts as potential professional football players during the 1969 football season.

After the complaint was filed, I interviewed Governor Hathaway, President Carlson, Jerry Hollon, Coach Eaton and members of his coaching staff— including Fritz Shurmur and Paul Roach, and members of the Board of Trustees. I was impressed with Coach Eaton’s attitude, concern and sincerity. I found him to be intense, direct, precise and caring. The loyalty and close-knit relationship between Eaton and his staff was obvious. Little wonder, I thought, that Coach Eaton and his staff had recruited some of the finest student-athletes to the University of Wyoming from across the country and had established one of the nation’s elite college football programs. In 1968, Eaton’s team had enjoyed an undefeated season and barely lost to a highly rated Louisiana State team in the Sugar Bowl, 20-13. That game ended with Wyoming threatening on LSU’s five-yard line. Many of us believed that the 1969 team was even greater. It had powered over its first four opponents and was one of the top ranked teams in the country. 

Even without the fourteen black athletes, most of whom were starters, Wyoming managed to defeat BYU, 40 to 7. From that point on, however, the season went downhill. Injuries and the absence of the Black 14 depleted Wyoming’s once bright 1969 football fortunes. Wyoming lost its last four games, all on the road.
 
An evidentiary hearing was set by the late United States District Judge Ewing T. Kerr of the District of Wyoming, at 9 a.m., on November 10, 1969, to determine whether to issue a temporary restraining order directing the defendants to restore the fourteen to the football team, with all constitutional rights and privileges.
The Black fourteen were present in the courtroom on November 10 for the hearing. However, because Mr. Waterman’s plane had been delayed out of Pontiac, Michigan, Mr. Graves asked for a continuance of the hearing to 1:30 p.m. After granting the motion, the court requested that the attorneys meet with him in his chambers. Mr. Graves and Mr. Reeves appeared on behalf of the black fourteen. I appeared on behalf of the state, university and all other defendants. Judge Kerr inquired of us whether there was any way to settle the case. I responded that Coach Eaton had always said that he was willing at any time to meet with the black fourteen individually on a person-to-person basis regarding their return to the team. Judge Kerr stated that perhaps the parties should attempt such meetings. Mr. Graves responded that he could not agree to such meetings because Coach Eaton had such a strong personality that he would take advantage of the black fourteen. He ventured, however, that such meetings might be possible if the attorneys were present. 

I was shocked at this suggestion, and remarked that if things were to be worked out between the coach and the players, it had to be done between them personally, and that the lawyers should not try the lawsuit at such meetings! However, as a compromise, I suggested that perhaps Judge Kerr might consent to sit in on the meetings. Judge Kerr stated that he was agreeable. Mr. Graves said that such meetings might be agreeable but that the decision would be up to Waterman, as lead counsel.

Judge Kerr then asked me whether Coach Eaton could come to Cheyenne that afternoon for the meetings. I said that I would phone him right away. I went to an adjacent room and contacted Coach Eaton in his office. He was both anxious and willing to come to Cheyenne for the meetings. He did ask, however, if it would be agreeable to bring his entire coaching staff so that the coach who recruited the particular player could also participate. I told him that unless he heard otherwise from me, he should plan to bring the other coaches. Eaton asked when the meetings would be held and I replied that they would be early afternoon if the plaintiffs and Mr. Waterman agreed to them. Coach Eaton informed me that he would remain in his office near the phone. His tone was upbeat and positive. He said he was prepared to drive to Cheyenne in a moment’s notice. I related this conversation to Judge Kerr, Mr. Graves and Mr. Reeves. I felt confident that the meetings would be held and that matters would be resolved that day. I had been told many times that the fourteen were very aggrieved that they were no longer able to demonstrate their football skills in the presence of professional football scouts.

I came back to the courtroom well before 1:30 p.m., in order to speak with Mr. Waterman about the proposed meetings.  When he finally arrived in the courtroom, we exchanged handshakes but be did not mention the meetings. As time continued to run, I approached Mr. Waterman and asked him about the meetings between Coach Eaton and the fourteen, individually, with Judge Kerr sitting in. He curtly replied, “There will be no such meetings.” He offered no explanation for his abrupt dismissal of the proposed settlement meetings. Mr. Waterman did not indicate that he had informed the fourteen of the proposed meetings with Coach Eaton and Judge Kerr and that they had rejected our proposal. I believed at the moment and I maintain today that a golden opportunity to resolve the dispute to the satisfaction of all concerned was lost by Mr. Waterman’s unqualified rejection of the proposed settlement meetings.

With that, I contacted Judge Kerr’s secretary and informed her of Mr. Waterman’s response and I asked an assistant to phone Coach Eaton and advise him of the response. The assistant reported to me that Coach Eaton was very disappointed.

The November 10 hearing proceeded after Mr. Waterman rejected the settlement meetings. The black fourteen presented the testimony of Joe Williams, who identified himself as their spokesman. He made it clear that he had enrolled at the University of Wyoming to play football because of Wyoming’s winning record and in the hope that one day he could play professional football. He pointed out that professional scouts for the Dallas Cowboys, the Los Angeles Rams and the Baltimore Colts had already contacted him and he was concerned about not being seen during the balance of the 1969 season. He explained the grievance of the black fourteen against the Mormon Church policy denying priesthood to blacks and that certain sacraments of the church were not available to blacks. He also testified that during his October 16 meeting with Coach Eaton that Eaton had told him “There won’t be any trouble unless you wear black arm bands on the field.” He specifically denied that the fourteen had insisted on wearing the black arm bands during the football game, stating that “No, we didn’t plan to.”

 On my cross-examination, Williams made it clear that he had not been informed about the legal position of the state and university relative to the wearing of the armbands. Because of evidentiary rules, I could not examine him as to whether he had refused to meet with Coach Eaton and Judge Kerr that day to discuss settlement of the lawsuit, or whether he was even aware of the proposed settlement meeting.

As I stood in the courtroom, I looked toward the jury box where the black fourteen were seated with front row views. I took it for granted that their attorneys had informed them of the proposed meetings with Coach Eaton and Judge Kerr that afternoon and I wondered what they could gain by refusing to meet. To this day, I believe that if the black fourteen had been permitted to discuss their needs and desires and their future with Coach Eaton and other members of the coaching staff on November 10, 1969, the whole matter would have been resolved favorably to all concerned. If the fourteen had been left in the dark about the settlement meetings, what could have been the motive for such a decision?

A few weeks following the November 10 hearing, when registration for the second semester at the university was ongoing, I received a call from a member of the university registrar’s office in Laramie. He related that two of the Black fourteen had been in his office that day inquiring about registration and that both were unhappy that they had not been able to play football the balance of the season. This individual asked them why they did not meet with Coach Eaton and Judge Kerr at the courthouse in Cheyenne on November 10. Their response was that they had not heard of any such meetings but that they would have met with Coach Eaton that day had they known.

In addition to Williams’ testimony at the November 10 hearing, Tony McGee, Ivie Moore and Willie Hysaw, three of the black fourteen, signed a joint affidavit denying that they had stated during their meeting with the trustees on October 18 that they had “absolutely” refused to return to the football team unless they were permitted to wear the arm bands and that Coach Eaton must be fired. Their main grievance about their dismissal from the team was that they had been unable to demonstrate their athletic skills before professional football scouts.

The state and university presented their case refuting the testimony of the black fourteen and described in detail the events leading up to the Wyoming-BYU football game on October 18, 1969. President Carlson testified in detail. Affidavits signed by Governor Hathaway, members of the Board of Trustees, and others, were admitted in evidence. All of them asserted that the black fourteen had insisted on wearing the black armbands on the football field and that Coach Eaton be fired.

The November 10 hearing had commenced at 1:30 p.m. Closing arguments of counsel were concluded before a crowded courtroom at about 7 p.m. Judge Kerr took matters under advisement and on November 17, 1969, he entered an order denying the black fourteen’s application for a temporary restraining order restoring them to the football team. The black fourteen thereafter filed their notice of appeal to the United States Circuit Court of Appeals, Tenth Circuit. During the pendency of the appeal, three of the black fourteen, John Griffin, Don Meadows, and Ted Williams, withdrew from the law-suit. They had met individually with Coach Eaton, successfully completed spring football practice, and were full members of the Wyoming football squad for the 1970 football season.

On November 20, 1969, the state and university filed their Motion to Dismiss and/or for Summary Judgment, together with a detailed brief. The black fourteen filed detailed briefs in opposition. On March 25, 1970, the district court entered its ‘Order Granting Motion to Dismiss, With 5 Findings.” This is reported as Williams v. Eaton, 310 F. Supp. 1342 (D. Wyo. 1970). The district court’s Order was affirmed in all respects on appeal, but remanded to the district court for a factual determination as to whether the black fourteen were dismissed from the team because of their demand to wear the armbands during the game, observing ,”  that “such close and delicate constitutional questions  should be decided when the facts are fully developed at trial.” I recall that, in my closing remarks to the appellate panel, I said “When and if the time should come that it is permissible to protest or criticize any religion or any religious beliefs on the playing field, that will be the time to terminate all NCAA athletic events.”

The court of appeals affirmed the dismissal of all claims against the State of Wyoming under the doctrine of sovereign immunity set forth in the Eleventh Amendment and the  the money damages claims against the individual defendants because they were sued in their official capacities, holding that the “action in essence is for the recovery of money from the state.”5

Upon remand, various persons were placed under oath in depositions and an evidentiary hearing was held in the district court on September 27 and 28, 1971. Honorable Clarence A. Brimmer, Jr., was then serving as Wyoming Attorney General. The black fourteen were represented by the law firm of Graves, Smyth and Reeves. The fourteen presented the testimony of Willie Black, Melvin R. Hamilton, C. E. Hollon (adverse witness), Philip White, and Joseph R. Geraud (adverse witness), together with various exhibits. The state and university presented the testimony of William D. Carlson, Alfred M. Pence, Joseph R. Geraud and C.E. Hollon. The testimony was, for the most part, a “replay” of that presented at the November 10 hearing.

Following briefing and arguments of counsel, the district court dismissed the Black fourteen’s lawsuit. The district court’s findings of fact 14 and 15 were challenged on appeal by the fourteen. Findings of Fact 14 was that, based on all of the evidence,
 
“there is no merit in the contention raised by the Plaintiffs. . . [that] the tone of the purposes of the black arm band display was that of protesting against the alleged cheap shots and name-calling charged to members of the Brigham Young University football team; on the contrary, the court finds that such allegation is without merit and that the sole and only purpose in the arm band display was that of protesting against alleged religious beliefs of the Church of Jesus Christ of Latter Day Saints and Brigham Young University, which the Plaintiffs con­sider one and the same, and the court further finds that each of the Plaintiff football players refused to participate in the football game with Brigham Young University as members of the football team of the University of Wyoming unless they were permitted to demonstrate against the religious beliefs of the Mormon Church by wearing black armbands upon the playing field.
 
Finding 15 was that each of the fourteen had refused to play football at Wyoming if Lloyd Eaton remained as Head Football Coach.6

The final chapter in the litigation was written by the United States Court of Appeals, Tenth Circuit, when it affirmed the district court in Williams v. Eaton.7 The court held that the district court’s findings of fact were not clearly erroneous and on the legal issue involving the First Amendment, the court ruled:
 
..we are persuaded that the Trustees’ decision was ]awful within the limitations of the Tinker case itself. Their decision protected against invasion of the rights of others by avoiding a hostile expression to them by some members of the University team.  It was in furtherance of the policy of religious neutrality by the State. It denied only the request for the armband display by some members of the team, on the field and during the game. In those limited circumstances, we conclude that the Trustees’ decision was in conformity with the Tinker case and did not violate the First amendment right of expression of the plaintiffs. . . . We do not base our holding on the presence of any violence or disruption... Instead, the trial court referred only to the mandate of complete neutrality in religion and religious matters as the basis for the court’s ruling.8

The Black fourteen did not seek to appeal to the United States Supreme Court. Several years later, Judge Kerr inquired of me why the fourteen had not accepted Coach Eaton’s offer to meet with them at the courthouse on November 10. I could only relate that Mr. Waterman, lead attorney for the fourteen had simply informed me that “There will be no such meetings.”

How different might have been the future for the Black fourteen, the coaches and the university if only those players had met with Coach Eaton, the assistant coach who had recruited them, and Judge Kerr on November 10, 1969? I have little doubt that the players would have been restored to the team, and the prospects for the program, the coaches, the university and all of the student-athletes in the football program would have been forever brighter.

1  Abington School Dist. v. Schempp, 374 U.S. 203 (1963); McCollum v. Board of Education, 333 U.S. 203 (1948);  Everson v. Board of Education, 330 U.S. 1 (1947).
2  Engel v. Vitale, 370 U.S. 421 (1962); Zorach v. Clauson, 343 U.S. 306 (1952); McCollum; Cantwell v. Connecticut, 310 U.S. 296 (1940).
3 Hjorth Royalty Co. v. Trustees of University of Wyoming, 222 P.9 (Wyo. 1924).
4  393 U.S. 503 (1969)
5 See Williams V. Eaton, 443 F.2d 422 (10th Cir. 1971).
6 See Williams v. Eaton, 333 F. Supp. 107 (D. Wyo. 1971).
7  468 F.2d 1079 (10th Cir. 1972).
8  468 F.2d at 1084.


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