No due process claim for middle-fingered student athlete

In this civil rights case, a college student sued the University of Connecticut over a due process violation. I know that sounds boring. Let's spruce it up: she was a soccer star who lost her scholarship after flashing her middle finger on national TV in a post-game celebration. 

The case is Radwan v Manuel, issued on November 30. I wrote about the First Amendment angle at this link. In that portion of the case, the Court of Appeals (Bianco, Carney and Komittee [D.J.]) said that even there were a First Amendment violation (the speech being the middle finger), the defendants have qualified immunity because the law was not clear at the time whether university officials can discipline students for actions like this. So the Court of Appeals sidestepped deciding whether there was an underlying free speech violation; the Court was able to avoid deciding that issue because the immunity holding would have made such a holding unnecessary.

Not so with the due process claim. Again, the college defendants get qualified immunity because the law was not clearly-established whether plaintiff was denied a real chance to defend herself before the college revoked the scholarship. But the court does take the time to determine if there was an underlying due process violation, as this issue may arise again in some other case and judges and litigants deserve to know what the law is. Good news for college students: the next time this happens to someone, that student will have a due process case.

We have two elements for any due process case: (1) plaintiff needs to show the deprivation of a property interest under the Fourteenth Amendment; and (2) if so, whether she was denied a fair chance to protect that property interest.

First, since the college gave plaintiff a rock-solid, one-year scholarship, terminable only for cause, we can compare it to a contract for which plaintiff had a legitimate entitlement. She also relied on that scholarship, which took care of her tuition, books, and housing. I don't see too many cases holding that a due process plaintiff has an actual property interest in anything, so savor this holding. Second, plaintiff was denied the fair chance to defend herself against allegation that giving the finger on national TV violated university standards. 

The problem for plaintiff is that this due process holding was not foreseeable from prior court rulings. That entitles the defendants to qualified immunity; they cannot be sued for constitutional violations if the prior case law was not sufficiently clear to place the defendants on notice that they were violating the Constitution. So while plaintiff loses the case, the Due Process Clause wins the case, and some other overly-enthusiastic middle-finger-raising college athlete in the Second Circuit can use this case if they are ever disciplined for such a heinous act. 

But all is not lost for plaintiff. While she cannot proceed with her free speech and due process claims, as I will discuss in the next blog post on this case, she does have a claim for gender discrimination under Title IX of the Civil Rights Act of 1964. The next blog post will cover that issue.