By Christian S. Dennie, of Barlow Garsek & Simon, LLP
This case arises out of events following a soccer game on November 9, 2014, where Noriana Radwan (“Plaintiff” or “Radwan”), then a member of the University of Connecticut (“UConn”) women’s soccer team, “flipped the bird” at an ESPNU camera during a live broadcast, resulting in her dismissal from the UConn women’s soccer team and the cancellation of her athletic scholarship. Radwan sued the UConn Board of Trustees, Leonidas Tsantiris (“Coach Tsantiris”), Head Coach of the UConn women’s soccer team at the time; Warde Manuel, the UConn Athletic Director at the time (“Athletic Director Manuel”); and Mona Lucas, UConn Director of Student Financial Aid. She claimed that UConn violated her rights under Title IX of the Education Amendments Act of 1972 (“Title IX”), and that Coach Tsantiris, Athletic Director Manuel, and Financial Aid Director Lucas (collectively, “Individual Defendants”) violated her rights to equal protection and procedural due process under the Fourteenth Amendment and her rights under the First Amendment. Radwan also brought claims of breach of contract and negligent infliction of emotional distress under state law against the Individual Defendants. The parties filed competing motions for summary judgment to which the court granted Defendants’ motion for summary judgment and denied Plaintiff’s motion for summary judgment.
On February 2, 2014, UConn awarded Radwan a full out-of-state athletic scholarship to UConn for the 2014-2015 academic year, including tuition, fees, room, board, and books. Ms. Lucas notified Radwan of her award by letter, which stated that the award was conditional upon, among other things, “adherence to NCAA, Conference, Division of Athletics and University rules, scholarship standards required by the University, and contribution to student life through participation in Women’s Soccer.” On February 10, 2014, Radwan signed an NCAA National Letter of Intent indicating intent to enroll and play women’s soccer at UConn (“NLI”) and, subsequently, on February 11, 2014, Radwan signed an Athletics Financial Aid Agreement (“Ath. Fin. Aid Agreement”). Under the agreement, her financial aid “may be immediately reduced or canceled during the term of this award if” she “engage[s] in serious misconduct that brings substantial disciplinary penalty.”
On November 9, 2014, the UConn women’s soccer team won an American Athletic Conference (“AAC”) tournament championship game against the University of South Florida, a game broadcast live on television by ESPNU. The team celebrated on the field immediately following the game. During the celebration, Radwan “showed her middle finger to an ESPNU camera and created an immediate social media and internet topic.” The ESPNU camera operator who captured the image could not say that the gesture was directed at the opposing team, and he did not see any players from the opposing team while he was videoing. Sport Administrator Eskin was present at the game and received a message on his phone from the Associate Director of Athletics for Communications with a screen shot of Ms. Radwan’s gesture to the ESPNU camera. He immediately showed the image to Coach Tsantiris. Athletic Director Manuel had been attending a UConn basketball game while the women’s soccer team was celebrating, and he was shown a screen shot of Ms. Radwan’s gesture shortly after it occurred, and he directed UConn Athletic Department staff to contact the women’s soccer coaches about the incident immediately to make sure the behavior was not repeated by Radwan or anyone else. In his view, Radwan’s behavior publicly embarrassed her, the team, and UConn, as it was unsportsmanlike and disrespectful. Not long after the game, Coach Tsantiris confronted Radwan about the gesture and suspended her from all team activities including participating in the NCAA tournament. The UConn Athletic Department helped decide the discipline she would receive. Athletic Director Manuel and Ms. Corum met with Radwan and informed her that she had received a letter of reprimand from the AAC. On December 21, 2014, Coach Tsantiris called Radwan to tell her that her scholarship had been cancelled for the spring 2015 semester. Radwan subsequently transferred to Hofstra.
Title IX
The parties agreed that Radwan’s claim is one of selective enforcement. She claimed that UConn discriminated against her in violation of Title IX by subjecting her to more severe penalties than it did, and does, for male-student athletes.
In order for Radwan to establish a prima facie case, she was required to show that UConn’s disciplinary actions “against [her] were motivated by h[er] gender and that a similarly situated []man would not have been subjected to the same disciplinary proceedings.” Radwan contended that eight male athletes were similarly situated individuals who engaged in comparably serious or more serious conduct yet were disciplined less severely than she was. Radwan argued that “male members of UConn’s high-profile men’s basketball and football teams [ ] have engaged in more serious misconduct, be it unsportsmanlike conduct during a game, violations of team rules on or off the playing field, and even criminal acts,”, “but did not have their athletic grant-in-aid cancelled and were not suspended or dismissed from their teams.”
Defendants argued that “no reasonable jury could find that” any of the male student- athletes to whom Radwan compared herself were similarly situated to Radwan because “no male students-athletes [ ] made an obscene gesture on national television at the conclusion of competition from 2013 to 2016,” none of the male student-athletes were reprimanded by the AAC for their behavior and “none of the male student-athletes’ coaches recommended to the assigned Sport Administrator and then the Athletic Director that their grant- in-aid should [be] cancelled because of their behavior,”
It was undisputed that the process for terminating a student-athlete’s grant-in-aid at UConn begins with the head coach for that student’s team making such a recommendation to the Sport Administrator for that sport. If the Sport Administrator agrees, then he or she may make a recommendation to the Athletic Director. If the Athletic Director is also in agreement, he or she may then make a recommendation to the Financial Aid Office that the student-athlete’s scholarship be terminated. But if the coach never makes a recommendation to the Sport Administrator that the student’s scholarship be terminated, the process is never started and neither the Sport Administrator nor the Athletic Director ever becomes involved in a decision regarding the student’s scholarship.
None of the coaches for the male student-athletes’ teams discussed here recommended to their respective Sport Administrators that the students’ scholarships be cancelled, and thus the decision regarding their scholarships never reached a decision-maker—the athletic director, Mr. Manuel—who had to approve the cancellation of Radwan’s scholarship. Significantly, because Radwan failed to appeal timely her coach’s recommendation of the termination of her scholarship, Mr. Manuel’s adoption of the coach’s recommendation does not provide record evidence probative of his alleged discriminatory intent.). As a result, these students cannot serve as comparators for purposes of raising an inference of discriminatory intent based on gender bias against Ms. Radwan.
Radwan did not establish a genuine issue of material fact that any of her proposed comparators were similarly situated individuals for purposes of inferring discriminatory intent. Thus, Radwan failed to establish a prima facie case.
Equal Protection Clause Claims
Radwan brought claims under 42 U.S.C. § 1983 that Athletic Director Manuel, Coach Tsantiris, and Director of Financial Aid Lucas discriminated against her based on her sex in violation of her rights under the Equal Protection Clause of the Fourteenth Amendment. Both Radwan and Defendants moved for summary judgment on these claims.
There was nothing in this record suggesting that Ms. Lucas had any personal involvement in the decision to cancel Ms. Radwan’s scholarship or even knew the reason why her scholarship was terminated. Indeed, the record evidence showed that the Financial Aid Office merely executed decisions made by the Athletic Director regarding decisions to withdraw cancel student-athletes’ scholarships, and that it did so in Ms. Radwan’s case as usual. Ms. Lucas did not sign the original letter cancelling Ms. Radwan’s scholarship, but rather an authorized representative signed it on her behalf. The evidence shows that Ms. Lucas was not even aware that Ms. Radwan’s scholarship had been cancelled until January 23, 2015, when she sent an e-mail to her staff asking about it. As a result, Defendants were granted summary judgment on Ms. Radwan’s Equal Protection Clause claim against Ms. Lucas.
Defendants argued that Coach Tsantiris did not violate Ms. Radwan’s equal protection rights because he was not involved in any decision that related to disciplining the male student- athlete comparators, nor did he have any authority over those comparators. Defendants cited to the Sixth Circuit decision in Heike to support their argument, arguing that, “[t]o be similarly situated, a player ‘must have dealt with the same [coach], have been subject to the same standards, and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or their employer’s treatment of them for it.’” The evidence in the record established, and Plaintiff conceded, that Coach Tsantiris had no authority over any of the male student-athletes and was not involved, nor could he have been involved, in the decisions to discipline any of them for their conduct. As a result, Defendants were granted summary judgment on Ms. Radwan’s Equal Protection Clause claim against Coach Tsantiris.
Defendants argued in response that Ms. Radwan’s argument as to Athletic Director Manuel is “confusing,” because she “d[id] not even allege that the process/procedure used for cancelling” Radwan’s scholarship “was different from the process/procedure used to cancel” male student-athletes’ scholarships. Defendants argued further that Athletic Director Manuel did not violate Radwan’s rights under the Equal Protection Clause because the male student-athletes were not similarly situated; or, with respect to the players who were disciplined after Athletic Director Manuel left UConn in March 2016, Athletic Director Manuel was not involved in the decisions to discipline them.
Radwan admitted Defendants’ description of the process for cancelling a student- athlete’s grant-in-aid for disciplinary reasons: the process begins with the student-athlete’s coach making a recommendation to the Sport Administrator, who would make a recommendation to the Athletic Director. She also admitted that none of the coaches for comparator male student-athletes recommended that their scholarships be cancelled. Thus, Mr. Manuel never became involved in a decision to terminate their student aid. Of course, no male student-athlete disciplined after Athletic Director Manuel left UConn could be comparators for purposes of Ms. Radwan’s Equal Protection Clause claim, even if their coaches had recommended their scholarships be removed, since Athletic Director Manuel would not have been involved in the decisions to discipline those players. Moreover, the lack of involvement of UConn’s Office of Community Standards is immaterial to Plaintiff’s claim, since that office also was not involved in all of the comparators’ cases. As a result, Defendants were granted summary judgment on Radwan’s Equal Protection Clause claim against Athletic Director Manuel because he, like Coach Tsantiris, was not involved in the decisions regarding the student aid for the male comparators.
Procedural Due Process Claims
Radwan brought claims under 42 U.S.C. § 1983 that Athletic Director Manuel, Coach Tsantiris, and Director of Financial Aid Lucas violated her rights under the Due Process Clause of the Fourteenth Amendment by terminating her scholarship mid-way through the academic year without sufficient process.
Radwan contended that she had a protected property interest in the athletic grant-in-aid that she was awarded for the 2014—15 academic year. She argued that Defendants violated her procedural due process rights by terminating the award mid-year. She argued that Athletic Director Manuel circumvented or ignored UConn’s regular student disciplinary authority—the Director of Community Standards—in deciding to terminate her aid, and that Financial Aid Director Lucas denied her due process by failing to grant her a reasonable opportunity for a hearing.
Defendants argued that Radwan had no protected property interest in her athletic grant-in-aid. Even if she did have a protected property interest, Defendants argued that Defendants provided all process that was due. Defendants argued further that Coach Tsantiris and Athletic Director Manuel would not be liable in any event because they were not personally involved in the alleged deprivation of Ms. Radwan’s procedural due process. Finally, Defendants argued that all Individual Defendants are entitled to qualified immunity on the procedural due process claims.
Radwan’s contract for an athletic grant-in-aid did not have the qualities of “dependence” or “permanence” required for it to create a constitutionally protected property interest. The contract was for a term of only one year, and Radwan did not depend on it for either continued enrollment at UConn or for athletic financial aid at another institution. Indeed, Radwan received an athletic scholarship from Hofstra University within weeks of losing her scholarship at UConn. “Where a breach of contract does not give rise to a deprivation of a protectible property interest, plaintiff’s exclusive remedy ‘lies in state court for breach of contract.’”
Because Radwan failed to establish that her contract for a one-year athletic grant- in-aid created a constitutionally protect property interest, the Court did not reach the question of whether the process she received was sufficient. In any event, UConn did have a procedure for appealing the cancellation of Radwan’s scholarship; she, however, did not timely appeal the decision.
Accordingly, the Court granted Defendants’ summary judgment motion as to Radwan’s procedural due process claims against all Individual Defendants.
First Amendment Claims
Radwan argued that her middle finger gesture was expressive conduct entitled to First Amendment protection, and that “[c]anceling the Plaintiff’s athletic grant-in-aid for making a gesture with her upraised middle finger, directed at no one in particular, in a moment of youthful, celebratory exuberance after a victory in a soccer game, constituted retaliation that certainly infringed her right of free speech.”
Defendants argued that Ms. Radwan’s gesture was not protected by the First Amendment because she concedes that it was “inadvertent” and therefore that she did not intend for it to express a particularized message. Defendants argued that Radwan “d[id] not even allege that her conduct conveyed a message where the likelihood ‘was great’ [enough] that it ‘would be understood by those who viewed it.’” In Defendants’ view, “[e]ven if [P]laintiff intended to show her middle finger to the ESPNU camera, a reasonable person watching her on TV, the internet[,] or in person would not understand to whom she was directing her conduct or the message she was conveying.” Raising one’s middle finger, however, has long been recognized as expressive conduct protected by the First Amendment. Indeed, the gesture has been described as a as “a nonverbal expression of anger, rage, frustration, disdain, protest, defiance, comfort, or even excitement at finding a perfect pair of shoes.”
Defendants argued that “it is unclear in the Second Circuit (and other Circuits) whether” university discipline of a college student is governed by Supreme Court jurisprudence on student speech, as most of those cases involved student speech in elementary, middle, and high school settings. In their view, because it was unclear what First Amendment analytical framework applied, “it was objectively reasonable” for Coach Tsantiris and Athletic Director Manuel to believe “they were permitted to discipline the plaintiff’s behavior.”
University students, largely over the age of eighteen, are no longer children. Indeed, the Supreme Court has stated that “[t]he college classroom with its surrounding environs is peculiarly the “marketplace of ideas.” The Second Circuit has also expressed skepticism that universities and colleges have as much latitude to regulate student speech as K-12 schools do. Nevertheless, the specific facts in this case, involving expressive conduct widely and publicly broadcast on national television, rather than limited to the university setting, complicate the matter.
Coach Tsantiris and Athletic Director Manuel were granted qualified immunity on Ms. Radwan’s First Amendment claims. The Court also granted summary judgment as to Ms. Radwan’s First Amendment claims against Ms. Lucas, UConn’s Financial Aid Director, because there was no record evidence that Ms. Lucas had any personal involvement in the decision to terminate Ms. Radwan’s scholarship, nor was she even aware of the circumstances leading to the decision.
State Law Claims
Radwan’s Complaint alleged that Defendants are liable under Connecticut common law for breach of her financial aid agreement and that the Individual Defendants are liable under Connecticut common law for negligent infliction of emotional distress. Defendants argued that Ms. Radwan’s breach of contract claim failed as a matter of law because none of the Individual Defendants were parties to the contract. Defendants also argued that Ms. Radwan’s negligent infliction of emotional distress claim is barred by statutory immunity as provided in Conn. Gen. Stat. § 4-165. Radwan conceded Defendants’ arguments as to both claims. Accordingly, the Court granted summary judgment to Defendants on Radwan’s breach of contract claim and her negligent infliction of emotional distress claim.
Dennie can be reached at cdennie@bgsfirm.com
