Legal Brief
The Legal Frontier of Native American Team Names
BY DAVID B. RUBIN/School Administrator, September 2021

WHEN THE WASHINGTON REDSKINS pro football franchise changed its name last year after many years of vocal opposition, it underscored the longstanding debate over Native American team names, mascots and logos in sports.

In New Jersey, where I represent school districts across the state, about 20 Indians, Chiefs and Braves team names exist among our roughly 600 public high schools. In some towns, it’s not been raised as an issue. In others, it’s a community relations nightmare.

Opponents of such names contend that appropriation of Native American symbols and personalities is disrespectful and sends the wrong message to students of all backgrounds. They point to research from the American Psychological Association citing the negative effect on self-esteem of American Indian children. To supporters, these symbols have been bound up in the very identity of the school district for generations and honor the nation’s indigenous peoples, not demean them.

Relevant history or context may weigh against a one-size-fits-all policy. In one northern New Jersey district, legend has it that its high school teams were named the Chiefs to honor an athletic director from the 1930s who was bestowed that very title by a Native American tribe he invited to the high school to educate the school community. Then there are the numerous tribal high schools across the country where the student body has authentic cultural ties to that heritage.

Real Victims

Change can be costly, as districts thinking of rebranding their teams may need to purchase new uniforms, change signage and even renovate their buildings. A superintendent in one New Jersey district once told me that if he had to change the team name from the Chiefs, he’d just remove the “i” from the uniforms and call them the Chefs!

But community relations and finances aside, what legal framework can you look to for guidance? Federal and state civil rights laws prohibit discrimination by school districts based on race or ethnic identity, but court challenges based on those statutes usually have been unsuccessful. That’s because these laws typically require a real-life victim with legal standing to sue who has suffered some demonstrable harm, usually more than just some hurt feelings.

Many states’ civil rights laws afford more protection than federal law so even without distinct, provable harm, districts with Native American students should carefully assess the ever-expanding theory of “hostile environment” discrimination in their own jurisdiction to ensure they do not unwittingly violate students’ rights.

State Dictates

Rather than rely on the courts to sort this out on a case-by-case basis, states have begun to address the matter through legislation offering clear guidance to their school communities. Most of the laws were hammered out by elected officials accountable to their constituents and are subject to change if public sentiment shifts.

Maine has a flat-out prohibition of any references to Native American tribes or customs. California’s statute is more narrowly tailored, specifically banning the term “Redskins” with a phase-out period to let schools adjust. Washington has banned Native American names and mascots but exempts districts that secure permission from a nearby tribe for respectful use. 

Check out Wisconsin’s complicated statute, which provides for a hearing upon a complaint signed by 10 percent of a district’s electorate and bans the team name or mascot if shown to be discriminatory. The law allows extra time for a school to make the transition if there are “extenuating circumstances.” Wisconsin provides an exemption when a tribe “with historical ties to this state” has consented. Tennessee prohibits any state agency from banning mascots “that honor certain persons or cultures” and preserves districts’ local option.

The contentious policy debate I leave to superintendents, but suggest they consult with their district’s legal counsel to at least ensure they’re on the right side of the law in their state.
DAVID RUBIN is an education attorney of counsel to the Busch Law Group in Metuchen, N.J. Twitter: @dbresqnj