Ambrose V. Delaware State University: Retaliation Claims Based on Speech, Not Sex

Oct 22, 2021

By Gary Chester, Senior Writer

The pages of this publication are often filled with cases reflecting the difficulties that student-athletes face when they report Title IX and other violations to colleges and universities. Student-athletes often report egregious conduct on the part of the institutions who tend to reflexively defend their own interests to the detriment of the complaining party.

Ambrose v. Delaware State University, 2021 U.S. Dist. LEXIS 151849 (D. Del. August 12, 2021) is one such case. However, the court’s decision on motions to dismiss by multiple defendants reminds us that not every action is based on gender and that Title IX has its limitations. It also demonstrates that colleges, like other businesses, would do well to apply risk management practices when there are obvious missteps.

The Facts

The plaintiff, Allison Ambrose, played on the Delaware State women’s golf team on a partial scholarship. Her coach, Scott Thornton, told her that she could earn additional scholarships if she improved her game. In Ambrose’s freshman year, she attended a party held by upperclassmen on the team who served too much alcohol to a freshman teammate. Concerned about getting her teammate home, Ambrose called her teammate’s mother for advice. Later, her teammate’s mother later complained to Thornton about the party.

Ambrose alleged that Thornton asked her why she told her teammate’s mother “everything” about the party and that Thornton retaliated against her. Thornton gave the plaintiff a uniform that was the wrong size, bad-mouthed her to the team, and demanded that she drive her teammates to practice and run personal errands for him. The coach threatened to revoke Ambrose’s scholarship if she did not perform these tasks.

Ambrose complained about Thornton’s retaliatory conduct to a faculty athletic representative, Dr. Charlie Wilson. He allegedly took no action and encouraged the coach to strip Ambrose of her scholarship. When Thornton learned that Ambrose had complained to Wilson, he suspended her for two games of her five-game season and tampered with her golf ball to increase her stroke count during a tournament.

The allegations become even more disconcerting: Ambrose claims that Thornton met with one of her professors, Dr. Kam Kong, to conspire to have Ambrose removed from the golf team. Kong issued an “F” to Ambrose to keep her a credit short of maintaining her scholarship, even though Kong issued an “A” to a male classmate who handed in identical test answers.

Ambrose complained to the department chair, who acknowledged that it was improper for Kong to meet with the coach. The chair encouraged Ambrose to raise the issue with her academic advisors. When she did raise the issue and Kong found out, the professor telephoned her repeatedly, waited for her on campus, and chased her to her car. Ambrose reported the incident to the university police and the provost, but Delaware State took no action.

Ambrose withdrew from the university and filed a federal lawsuit against the university, Dr. Kong, Coach Thornton, Dr. Wilson, and other individual defendants. She alleged Title IX retaliation, breach of contract, breach of the implied covenant of good faith and fair dealing, and promissory estoppel. She sued Thornton, Kong and other individuals for retaliation under the First Amendment. She also sued Kong for assault.

The defendants moved to dismiss the claims. The court granted the motions in part and denied them in part.

The Title IX Retaliation Claim

The basis of the motion to dismiss the Title IX claim is failure to plead any gender-based discrimination. The court stated that Ambrose needed to plead that “(1) she engaged in activity protected by Title IX; (2) she suffered an adverse action; and (3) a causal connection existed between the two.”

The court noted that a “general complaint of unfair treatment is insufficient to establish protected activity.” In dismissing the Title IX claim, the court stated that the plaintiff “does not allege Coach Thornton mistreated her because of her gender.”

The court continued: “The same is true for Dr. Kong. While Ms. Ambrose alleges Dr. Kong gave her lower grades than a male classmate, she attributes Dr. Kong’s mistreatment to an alleged conspiracy between Dr. Kong and Coach Thornton to fail Ms. Ambrose and prevent her from participating on the golf team. She does not attribute his mistreatment to gender discrimination.”

The First Amendment Retaliation Claim

The court found that the complaint set forth a viable First Amendment claim against defendants Kong, Thornton, and Wilson, but not against the other defendants.

To state a claim for First Amendment retaliation, Ms. Ambrose must allege “(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.” The defendants argued that the plaintiff’s speech was not constitutionally protected because it did not involve matters of public concern. But the court recognized that students do not shed their free speech rights at the schoolhouse gate and that their “free speech rights are not limited to matters of public concern.”

As to Thornton, the court found that tampering with Ambrose’s golf ball at a tournament, suspending her from games, and conspiring with Dr. Kong to fail her, could constitute retaliation. Citing Pinard v. Clatskanie School District, 467 F. 3d 755 (9th Cir. 2006) (high school violated student-athletes’ free speech rights by suspending them for circulating a petition for their basketball coach to resign), the court applied the standard of whether a school’s actions “would deter a person of ordinary firmness from complaining about her coach.”

The court found a viable claim against Dr. Kong for retaliation because waiting for Ambrose outside her class, chasing her to her car, and issuing her a failing grade would deter a student from speaking out.

The court further found a viable claim against Dr. Wilson for retaliation because conspiring with Thornton to remove Ambrose from the team for complaining about her coach, as in Pinard, would deter one from exercising the right to report mistreatment.

Are Defendants Thornton, Kong and Wilson Entitled to Qualified Immunity?

The court stated that qualified immunity shields federal and state officials from liability unless a plaintiff pleads facts showing: “(1) the official violated a statutory or constitutional right, and (2) the right was ‘clearly established’ at the time of the challenged conduct.” Applying this standard, the court found the defendants’ qualified immunity arguments wanting.

The court rejected the defendants’ argument that Ambrose’s speech was completely private in nature and bore no relationship to any issues of public concern. The court reiterated that student speech need not relate to matters of public concern to receive First Amendment protection.

The Contract-Related Claims

The court ruled that Ambrose had failed to state claims for breach of contract and breach of the implied covenant of good faith and fair dealing. The court reasoned that while Ambrose pleaded a breach of the university’s student handbook, she had failed to identify any specific provisions that were violated.

The court did find that Ambrose had sufficiently pleaded a promissory estoppel claim against Delaware State because she stopped pursuing other opportunities and relied on Thornton’s offer of a $2,000 partial scholarship with the chance for further scholarships if she improved her golf performance.

Finally, the court found that Ambrose had sufficiently pleaded an assault claim against Kong. The defendant argued that Ambrose failed to plead sufficient facts that Kong “put her in imminent apprehension of (offensive) conduct,” but the court found that Ambrose’s claim that she felt fearful enough to file a police report against Kong was sufficient for the trier of fact to infer she felt imminent apprehension of offensive contact.

The Takeaway

Perhaps the most significant lesson of this mess is that universities, like other businesses, must strive to be ethical and fair. At the very least, Delaware State needed to conduct an impartial investigation and hold a hearing. The factual allegations raise substantial issues, not the least of which is whether Coach Thornton and the university tolerated underage drinking by their student-athletes and whether their conduct towards Ambrose was intended to deter their students from exposing this practice.

Second, why did the university fail to use the basic risk management technique of hiring an independent law firm to investigate Ambrose’s allegations and make recommendations? The purpose of such an investigation is to consider and follow a prudent course of action recommended by impartial legal counsel that is designed to prevent embarrassing and costly civil litigation.

Here, Delaware State appears to have chosen a more unseemly path, with mixed – and expensive – results so far.