A University of Connecticut athlete has partially won an appeal of a civil lawsuit against the college’s Board of Trustees. Noriana Radwan alleged she was disciplined in a disparate fashion — and lost her scholarships — after she gave the middle finger to an ESPNU television camera while celebrating a win on a soccer field.
The Second Circuit Court of Appeals described the facts and the procedural history this way:
In 2014, Noriana Radwan, then a women’s soccer player at the University of Connecticut (“UConn”) and recipient of a one-year athletic scholarship, raised her middle finger to a television camera during her team’s post-game celebration after winning a tournament championship. The game was being nationally televised and Radwan’s gesture was captured on the broadcast. Although she initially was suspended from further tournament games for that gesture, Radwan was ultimately also punished by UConn with a mid-year termination of her athletic scholarship. She brought this lawsuit against UConn (through its Board of Trustees) and several university officials alleging, inter alia, violations of her First Amendment and procedural due process rights under 42 U.S.C. § 1983, as well as a violation of Title IX of the Education Amendments Act of 1972 (“Title IX”), 20 U.S.C. § 1681, in connection with the termination of her scholarship. On appeal, Radwan challenges the decision of the district court (Bolden, J.) granting the defendants’ motion for summary judgment on those claims.
A panel of judges on the Second Circuit said the district court judge was correct to decide in favor of UConn at the summary judgment stage regarding Radwan’s First Amendment and procedural due process claims under the U.S. Constitution. While Radwan did enjoy a property interest in her scholarship, the judges concluded that the trustees were protected by the doctrine of qualified immunity.
However, the appellate judges handed Radwan a decisive win as to a Title IX claim.
“Radwan has put forth sufficient evidence, including a detailed comparison of her punishment to those issued by UConn for male student-athletes found to have engaged in misconduct, to raise a triable issue of fact as to whether she was subjected to a more serious disciplinary sanction, i.e., termination of her athletic scholarship, because of her gender,” the Second Circuit ruled.
U.S. Circuit Judge Joseph F. Bianco, a Donald Trump appointee, wrote the opinion. He was joined by Circuit Judge Susan L. Carney, a Barak Obama appointee, and U.S. District Judge Eric R. Komitee, another Trump appointee. Judge Komitee was called away from his usual district court position to hear the case on the Second Circuit — a process known as “sitting by designation.” The decision was unanimous; there were no recorded dissents or concurrences.
The panel noted that Radwan’s scholarship could be rescinded if she “engage[d] in serious misconduct that brings substantial disciplinary penalty.” Additionally, the panel noted that UConn’s Student-Athlete Handbook banned the use of “obscene or inappropriate language or gestures to officials, opponents, team members or spectators.”
The parties agreed, according to the opinion, that Radwan’s Nov. 9, 2014 display of her middle finger “created an immediate social media and internet topic.”
The cameraman present for the display “could not say that the gesture was directed at the opposing team” and “further testified that he did not see any players from the opposing team while he was filming,” the Second Circuit noted.
The opinion says Radwan quickly changed the gesture to a peace sign. She also emailed an assistant coach after midnight to apologize.
UConn officials issued a press release saying Radwan had been “suspended indefinitely from team activities and w[ould] not play in the NCAA tournament,” the opinion states.
The 96-page opinion goes on to explain, in extreme detail, how the disciplinary process played out. Radwan eventually transferred to Hofstra, began classes there in January 2015, and graduated in 2018.
Free Speech – The First Amendment
The appellate judges ruled generally that qualified immunity protected the UConn board against Radwan’s constitutional claims. They also suggested that the university was within its rights to regulate vulgar conduct in the forum relevant to this case — though that analysis took considerable time since most free speech cases in the educational setting involve K-12 schools, not colleges, and generally involve settings quite different from a university-sanctioned intercollegiate athletic contest. In other words, the law is somewhat vague, the Second Circuit noted: “neither the Supreme Court nor any circuit court has yet provided an alternative legal standard or framework to help university administrators discern the precise constitutional line in such circumstances, especially when the student engages in speech while wearing the university’s uniform as part of an extracurricular activity.”
With that in mind, the court reasoned as follows:
Here, there is no indication that the Individual Defendants would have taken any disciplinary action against Radwan had she displayed the middle finger in some other university setting, such as a campus dormitory, classroom, or other student gathering. Instead, the Individual Defendants were regulating Radwan’s ability to display a vulgar or offensive gesture as an athlete on the university’s sports team, wearing the university’s jersey, during a university sports event. And, contrary to Radwan’s suggestion, such a situation is different from the use of that gesture by a student in a quad celebrating the team’s victory with classmates or wearing a vulgar T-shirt on campus. Unlike those students, Radwan’s speech and conduct were subject to additional restrictions because she was: (1) required to comply with the codes of conduct agreed to by student athletes as part of their participation on a university team and ability to receive a scholarship; (2) subject to the authority of the Athletic Department; and (3) officially representing the university in inter-collegiate play at a school-sanctioned event.
[ . . . ]
We are aware of no court that has suggested that a university is prohibited under the First Amendment from disciplining a student-athlete for vulgar or offensive language/expressions while wearing the school’s uniform at a school-sponsored athletic competition. Such a broad rule would deprive a university of the ability to ensure that its own student-athletes are engaged in good sportsmanship while representing the school in athletic competitions.
“As a result,” the judges concluded, “courts have not hesitated to grant qualified immunity to university officials who attempt to regulate speech at the university level.” And, here, they decided to do the same — at least as to the First Amendment claim at hand.
Procedural Due Process
The court concluded similarly as to Radwan’s procedural due process claim. Here, the court concluded — against UConn’s wishes — that Radwan held a property interest in her scholarship. But, the court reasoned, the school was protected in its decision to take the scholarship away — even without a hearing, which is what Radwan alleged.
Again, from the opinion:
In sum, we hold that Radwan possessed a constitutionally protected property interest in her fixed-term athletic scholarship that could be terminated only for cause. We emphasize that we do not address whether the prospective renewal of an athletic scholarship would rise to the level of a protected property interest.
In light of this constitutionally protected property interest, Radwan asserts that UConn violated her due process rights by providing her with no pre-deprivation notice, hearing, or opportunity to be heard, and by failing to provide a neutral decisionmaker. However, we need not address that issue. Even assuming arguendo that Radwan did not receive the process she was due, we nevertheless conclude that the district court properly granted summary judgment on qualified immunity grounds. We do so because no precedent in this Circuit or in the Supreme Court has conclusively established that student-athletes have a constitutionally protected property interest in athletic scholarships.
But, as noted, that did not fully settle the issue. The judges next zeroed in on the disparities Radwan alleged while comparing her case to other cases on campus.
“Radwan also asserts a Title IX claim in which she alleges that her scholarship was terminated on the basis of her sex,” the judges wrote. “[T]the evidence, taken as a whole and construed most favorably to Radwan as the non-moving party, is sufficient to create genuine issues of material fact as to whether Radwan received a more serious disciplinary sanction at UConn because of her gender.”
Title IX bans educational institutions or programs which receive federal financial assistance from “discrimination” or a denial of benefits or participation “on the basis of sex.”
Radwan alleged a “a theory of selective enforcement,” the judges wrote.
Specifically, Radwan noted that a male athlete who kicked a “dead ball” into the stands full of fans suffered only a fifteen-yard penalty during a football came — not the loss of a scholarship or personal discipline — for his “unsportsmanlike conduct.”
From the judges:
Construing this evidence most favorably to Radwan, a reasonable juror could conclude that [the male football player] was similarly situated to Radwan in all material respects, but received more favorable treatment as to the alleged misconduct. Both student-athletes were on full scholarships, both engaged in what was defined as unsportsmanlike conduct, and both engaged in such conduct in public, while in uniform on the playing field. Further, both were first-time offenders, [Athletic Director Warde] Manuel was personally aware of both incidents, and both student-athletes later expressed remorse. Indeed, a jury could reasonably find that [the football player’s] misbehavior was the more serious of the two, because, unlike Radwan’s fleeting gesture to the camera, [the football player’s] actions were not only embarrassing to the university, but also jeopardized the team’s chance of victory and could have physically endangered spectators.
[ . . . ]
UConn provides several explanations as to why Radwan and Adams are not similarly situated. However, in this case, a jury needs to decide whether these distinctions are material and resolve any conflicting inferences that could be reasonably drawn from the differing facts.
One of those rationale, according to Manuel’s assertions that were cited by the appellate court, was that unsportsmanlike conduct that occurs during a game is generally dealt with by those officiating the contest. Radwan’s occurred after the game was complete. The court spent several paragraphs dealing with the logical threads that continued from that assertion but again concluded that a jury should ultimately weigh whether or not they were valid.
Additionally, according to the opinion, Radwan pointed to another incident of alleged disparate treatment.
“Shortly after UConn initiated disciplinary proceedings against Radwan, four male UConn basketball players—two of whom had full athletic scholarships—missed curfew during a tournament in Puerto Rico and were sent home to Connecticut early,” the court wrote. “The basketball coach and AD Manuel (who was personally aware of the incident) instituted no disciplinary proceedings and took no action to terminate the players’ scholarships.”
Additionally, according to the opinion, a male soccer player without a scholarship “was arrested for theft” and was given only a “warning” and was required to participate in a workshop about values. This, the judges noted, was “the most significant penalty of the examples identified in the record involving male student-athletes at UConn.”
In other words, Radwan’s penalty was significantly more extreme, and the appellate panel rubbished UConn’s attempt to meaningfully distinguish the male and female cases: “we find those arguments unavailing.”
“In fact,” the appellate judges said elsewhere, “it is undisputed that, during AD Manuel’s tenure at UConn from March 2012 to March 2016, no male student-athlete was ever permanently removed from his team, or had his scholarship terminated, for a first instance of unsportsmanlike conduct.”
It also didn’t help that a coach Leonard Tsantiris called the middle-finger incident “serious misconduct” and “devastating” in some statements and “a silly mistake” by a “good kid” who made “one mistake” in others, the judges noted.
“Viewing the facts in the light most favorable to Radwan, a reasonable jury could conclude that one or more of these male student-athletes at UConn was sufficiently similar in all material respects to Radwan to raise an inference that, but for her gender, she would not have received the more severe punishment of termination of her scholarship,” the judges concluded. “In sum, we conclude that, when the evidence in the record is taken as a whole and is construed most favorably to Radwan, a rational jury could find that, but for her gender, Radwan’s alleged misconduct would not have caused UConn to terminate her scholarship.”
The case was remanded back to the district court to ascertain what’s next — and that potentially means a jury trial.
The full 96-page opinion is here.
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