Victorious college soccer player who gave the finger on TV cannot sue under the First Amendment

This comprehensive ruling from the Court of Appeals outlines a college student's rights under the First Amendment, the Due Process Clause, and Title IX. The student-plaintiff wins the appeal under Title IX but loses on the constitutional claims. We are dealing with a college soccer player who gave the finger on national television after winning a soccer match, for which she suffered discipline. Does she have a case?

The case is Radwan v. Manuel, issued on November 30. Plaintiff was a women's soccer player on the University of Connecticut team and the recipient of a one-year scholarship. She raised her middle finger to a TV camera during a post-game celebration after winning a tournament championship. First was suspended. Then UConn revoked her athletic scholarship. She wound up transferring to Hofstra. This case raises some important legal issues, which explains why the Court of Appeals (Bianco, Carney and Komitee [D.J.]) took over a year to issue the opinion, which is 96 pages long. This blog post will cover the First Amendment issues. Subsequent posts will cover the other issues.

My guess is that the public would be OK with a celebratory college soccer player extending her middle finger to a TV camera after winning a big game. People are giving the finger all the time these days, and we elected a President in 2016 who routinely expressed vulgarities during the campaign and even during his presidency. But constitutional law does not care about public opinion. Judges care about case law.  

Under the qualified immunity analysis, the court has to determine if the law was clearly-established for plaintiff to recover any damages. That requires the court to survey the case law in the Second Circuit and the Supreme Court. The Supreme Court has issued a series of rulings on the speech rights of public school students, but these cases involve grade-schoolers who sued their school districts, not public college students. The Court has also said on a few occasions that the First Amendment protects certain vulgarities. But that does not mean plaintiff has a case. The problem here is that the case law is not clearly-established that a public college student can give the finger to the world at large. That creates a qualified immunity problem. What makes it worse for plaintiff is that the Supreme Court in the grade school cases left open the possibility that its analysis might extend to the university setting. But it might not.

Plaintiff tries to get around the qualified immunity problem by noting the Supreme Court in Papish v. Board of Curators, 410 U.S. 667 (1973), said a public college could not punish a student for publishing an underground newspaper. But the plaintiff in Papish won because the newspaper was not part of a school-sponsored activity; that's the whole point of an underground newspaper. The Second Circuit holds:

Expelling a university student because of a disagreement with the content of an article in an independent student newspaper, as in Papish, is not the constitutional equivalent of disciplining a university student for displaying a vulgar or offensive gesture while playing for a university’s sports team. In fact, in Papish, the Supreme Court emphasized that it had “repeatedly approved” of the legitimate authority of universities “to enforce reasonable regulations as to the time, place, and manner of [student] speech and its dissemination.”

Bottom line: the case law in this area is too ambiguous to place UConn officials on notice that they were violating the First Amendment in punishing plaintiff for giving the finger on TV during the post-game celebration. That is how qualified immunity works. No damages are available in this circumstance. While qualified immunity cannot attach when the plaintiff seeks injunctive relief, no such relief (such as reinstatement) is available because plaintiff has long since graduated college.

A few words about qualified immunity. Some time ago, the Supreme Court suggested that federal courts squarely determine whether the Constitution was violated even if the court ultimately finds that qualified immunity must attach. Under that approach, the law can be clearly-established from that point forward, and more plaintiffs can proceed with their cases in the future without the immunity cycle repeating itself because the courts never got around to identifying any constitutional violation. In a subsequent case, the Supreme Court stepped back from that approach and said federal courts can avoid identifying the constitutional rights at their discretion and jump straight to the qualified immunity analysis. Courts now mostly follow the latter approach. That means the next free speech case that rolls around in this context will probably be dismissed on immunity grounds because there is still no case that squarely identifies the constitutional right. But curiously, the Court of Appeals -- while granting qualified immunity on plaintiff's due process claim -- does take the time to note that the Constitution prohibited University officials from depriving plaintiff of her scholarship with a fair chance to be heard prior to the deprivation. So that holding may not help plaintiff in this case but it will help future student athletes. A discussion of this dilemma is at this link.