By Ellen J. Staurowsky, Ed.D., Professor, Sport Management, Drexel University
In February of 2016, former Kent State University (KSU) softball player, Lauren Kesterson filed a civil rights action against the University and head coach, Karen Linder, for violations of Title IX of the Education Amendments Act of 1972, denial of equal protection as established under the Fourteenth Amendment, and intentional infliction of emotional distress under Ohio law. In Kesterson’s complaint, Coach Linder is accused of engaging in a cover up of an alleged rape* and abusing her position as a coach in coercing Kesterson to remain silent.
Facts As Represented in the Kesterson Complaint
The timeline of the case begins in the fall of 2012, when Kesterson and her twin sister left their home in the state of Washington to play softball for well-known and highly successful KSU head coach, Karen Linder. Within four months, Kesterson alleges she was raped in her apartment by another first year athlete with whom she had developed a friendship, baseball player Tucker Linder, the coach’s son. While the two had engaged in minor intimacies on a previous occasion, Kesterson reported that on that particular December night the 6’5”, 210 pound KSU pitcher had been drinking alcohol and seemed impervious to her protests, which she claims she made known at least ten times as he overpowered her.
Concerned that she would jeopardize her ability to retain her athletic scholarship and compete in a sport that she loved if her coach found out, Kesterson attempted to deal with the stress of the situation initially by herself, eventually telling only her parents, sister, and one teammate. Over time, however, the trauma of the personal violation itself along with the complications of being around her alleged assailant and his mother who was also her coach proved too much. An encounter with Tucker at a party in September of 2013, wherein he allegedly made reference to the attack in a loud remark directed at Kesterson’s boyfriend triggered anxiety and a heightened sense that she could not avoid reminders of what had happened.
Having been a strong student throughout high school, graduating in the top 5% of her class, Kesterson had an increasingly difficult time focusing on academic work and mustering the energy to attend classes even on test days in the months following her alleged assault. Her grade point average dropped from a 3.98 at the end of her first semester in 2012 to a 2.84 at the end of her sophomore year. Kesterson also reported other signs of trauma including the inability to sleep, recurrence of nightmares, experience of flashbacks, and loss of weight.
After an emotional speech to her teammates in the spring of 2014, Coach Linder asked Kesterson’s twin and another teammate if Lauren had been sexually assaulted. They, in turn, directed the Coach to speak with Lauren. In a May, 2014 meeting, the Coach asked Kesterson directly if she had been sexually assaulted. Kesterson revealed she had been. At the moment Kesterson told her coach, Coach Linder was under an obligation to report the incident and, according to Kesterson, Linder said as much. When Kesterson revealed that Linder’s son was the perpetrator, Linder then asked that the incident be held in confidence and that others not be told.
Kesterson recalled that Linder suggested that her son may not have known that he had raped Kesterson and repeatedly urged Kesterson to speak with her son despite Kesterson’s unwillingness to do so. According to the complaint, Kesterson interpreted this to mean that she would be kicked off of the team if she made others aware of what had happened, that her scholarship would not be renewed for the coming season, and her silence was required in order to keep her position on the team. Kesterson credited those fears with her decision to tell the Coach that she did not wish to pursue criminal charges against Mr. Linder.
During her junior year, Kesterson maintained her silence about the alleged rape in accordance with her coach’s request. Coach Linder, in turn, behaved as if the disclosure had not happened. The consequence of that pact would play out in a number of ways throughout the 2014-2015 academic year. Mandatory team events held at the Linder home required Kesterson to socialize and spend time in the home where the man who allegedly raped her lived. Although he was not physically present while the team was there, Kesterson confronted photos of him on the walls, including a life-sized decal of him. She would experience similar reminders each time she met with Coach Linder in her office at Kent State.
As described in the complaint, Coach Linder demonstrated “extreme indifference” to Kesterson’s suffering, not only ignoring that the alleged rape had occurred but changing Kesterson’s position from shortstop to second base. The strain of keeping up appearances despite Kesterson’s inner turmoil surfaced in the form of occasional emotional outbursts at practice, resulting in Coach Linder warning her that such behavior could not be tolerated.
In the summer of 2015 while home on break between her junior and senior years, Kesterson started to research how Title IX complaints are supposed to be handled. With a clearer understanding of her rights, she returned to the Ohio campus and met with Erin Barton, the Deputy Coordinator for Title IX on August 24, 2015, whereupon she attempted to file a second Title IX complaint, this time against Coach Linder. On August 25, Kesterson was told that Barton, in consultation with athletic director Joel Nielsen, opted to interview Coach Linder instead of filing a formal complaint. An emergency meeting of the team was called three days later, on August 28th. Athletic director Nielsen, accompanied by the senior woman’s administrator Janet Kittel, announced to the team that Coach Linder resigned and that an assistant coach, Eric Oakley, would take over as interim head coach.
After that meeting, Coach Linder sent a follow up email to the team (including Kesterson) expressing regret that she would not be with the team and that her departure as the team’s coach was not her choice. In an interview with local media a few days later, Coach Linder lamented a changing athletic and university landscape that required too much as a reason for her resignation, stating “It’s a world of entitlement, and I’ve struggled with that”.
She would go on to communicate with alumni of the Kent State softball program, fueling impressions that a “selfish” athlete and her parents were the cause of her resignation, prompting hostility to grow within the team toward Kesterson. In the midst of the leadership transition and the start of a new academic year, the team was told by the new interim head coach that negative comments about Coach Linder would not be tolerated and anyone making such comments would be released from the team immediately and without warning. Efforts to get relief from a rising tide of ill-feeling directed at her and her sister from team members and perceiving that attempts to tell her side of the story would result in retaliation against her, Lauren’s position on the team became untenable. By mid-September, both she and her twin found that they could no longer continue on the team given the climate. The physical and emotion toll of the experience led to Kesterson being hospitalized on September 30, 2015.
Although Coach Linder was no longer with the team, she remained a presence at Kent State through the 2015-2016 academic year. In the fall, she was back on campus attending a luncheon during homecoming weekend, being greeted by players (both current and former) wearing “We Support Karen Linder” t-shirts during the alumni game. Coach Linder was also given access to Kent State facilities to conduct private lessons and to participate in a softball camp with KSU players during winter break of 2016.
Kesterson’s Claims Against Kent State University & Coach Linder
Kesterson puts forward three claims, the first implicating Kent State University; the second implicating both Kent State and Coach Linder, and the third implicating Coach Linder individually. The first claim asserts that Kent State University officials violated Title IX and University policy by failing to respond appropriately to intentional sex discrimination, evidencing deliberate indifference to sexual harassment, and engaging in retaliatory behavior toward the plaintiff.
Under Title IX, Tucker Linder’s alleged rape of Kesterson constituted a form of student-to-student sexual harassment. Kesterson argues that the injury she sustained as a result of that trauma was compounded by the failure of Coach Linder to report what had happened to Kent State authorities and to withhold information regarding the options Kesterson had to file a complaint. Rather, Kesterson alleges that Coach Linder evidenced deliberate indifference to her player’s situation, demanding that Kesterson not tell other people about what had happened and using the prospect of maintaining a position on the team and receiving an athletic scholarship to silence her. Linder’s treatment of Kesterson differed from the way in which she comforted another softball player on the team who also disclosed that she had been sexually assaulted by accompanying her to a campus support services office and filing a report as required by University policy with a designated campus Title IX coordinator.
Describing Kesterson’s softball playing experience as being akin to a job, the complaint details the ways in which Coach Linder in her supervisory role had control over her players. Beyond the playing field itself, Coach Linder determined who members of the team would live with and where they would live. Players’ daily routines were strongly influenced by the Coach’s expectations. Thus, players were told where and when they could eat; how and what they could drink; when they needed to study and in what setting being required to attend mandatory study halls; the terms under which they could socialize; how they dressed; how they could communicate on social media; when to schedule classes, giving precedence to softball related functions (conditioning and weight lifting sessions, individual workouts, practices and games); and when players could leave campus for winter and summer breaks. Given that Kesterson was on a one-year renewable athletic scholarship, she felt pressure to comply with her coach’s expectations and to go along.
When Kesterson learned that she did have options and attempted to file a second Title IX report, KSU athletic director Joel Nielsen intervened with Title IX Coordinator, Erin Barton (who is no longer with the institution) to meet with Coach Linder and presumably encourage her to resign rather than register a formal Title IX complaint (violating KSU’s own policy), thus further avoiding the necessity of firing Linder for cause. Kesterson asserts she suffered retaliation by Coach Linder and her replacement, Coach Oakley by fostering a hostile environment on the team and turning her teammates against her through the creation of a false narrative that Kesterson was to blame for Linder’s departure. The climate became so poisonous that Kesterson and her twin had no alternative other than leave the team, thus being prevented from the full benefit of access to play their sport and go to school in a safe and supportive environment. In sum, the individual and collective actions of Kent State officials ignored the fact that Kesterson had allegedly been raped and was suffering from the consequences of that, prevented her from getting the help she needed, and resulted in the infliction of additional pain and suffering through retaliatory actions and the slandering of her good name.
Kent State University’s Answer to the Kesterson Complaint
In April of 2016, Kent State filed its response to the Kesterson complaint, denying knowledge of Kesterson’s alleged rape and challenging the allegation that Kesterson’s disclosure to Coach Linder in their May, 2014 meeting about the rape constituted a Title IX report to a University official although there is an admission that “Coach Linder had a duty under university policy to report allegations of sexual assault to the appropriate Kent State officials” (para. 69). According to KSU, official notice occurred on August 30, 2015 at the time Kesterson spoke directly to Deputy Title IX Coordinator Erin Barton and not 15 months previously. In response to Kesterson’s account that Coach Linder followed university policy when addressing a report of a sexual assault of a second softball player a few days after Kesterson disclosed her situation to the Coach, Kent State relied on the Family Educational Rights and Privacy Act (FERPA) to indicate that they could neither deny nor confirm that this had happened.
In contradiction to Kesterson’s story, the University denied any intrusion on the part of the athletic director, Joel Nielsen, in the process of reporting Kesterson’s complaint lodged with Deputy Title IX Coordinator, Erin Barton. Regarding current team members wearing t-shirts supportive of Coach Linder, Kent State indicated that as of the time of the response they had not uncovered any evidence of that occurring. KSU also challenged the implication that Coach Linder was acting on behalf of the University in her interactions with Kesterson after learning about the alleged rape. It further argued that University was “without sufficient knowledge to form a belief as to any interaction between Kesterson and Mr. Linder” (Kent State response, 2016, para. 160).
Kent State puts forward numerous affirmative defenses, among them that the U.S. District Court for the Northern District of Ohio East Division is not the proper venue for some or all of her claims, that the University is protected by sovereign immunity, and that Kesterson failed to exhaust all avenues for administrative relief within the University and did not use the appropriate process in filing retaliation claims.
Ohio Attorney General’s Office Seeks to Dismiss Claims Against Coach Linder
Kent State University is a public institution located in the state of Ohio. As such, it fell to the Ohio Attorney General’s Office to respond to Kesterson’s complaint in April of 2016 by filing a motion to dismiss claims against Coach Linder for four reasons: that Kesterson failed to state a federal claim under which she could receive relief; that Linder was protected by qualified immunity from the federal claim and statutory immunity from the state law claim; and that the Court lacked subject matter jurisdiction over the state law claim.
Contesting the grounds for Kesterson’s complaint, Defendant Linder drew a distinction between the probability versus plausibility requirement in assessing a claim, noting that the plausibility requirement “…asks for more than a sheer possibility that a defendant has acted unlawfully”. The question at issue was whether Linder, while acting under the color of state law, deprived Kesterson, of protections she should have had under federal law. Citing two types of equal protection in school settings recognized by the Sixth Circuit (differential treatment of a member of a recognized class and deliberate indifference), Linder reasons that Kesterson did not address either one.
According to Defendant Linder, her behavior was not gender inequitable because she treated two female athletes differently (one she counseled to file a complaint and go to counseling; another she counseled to remain silent). As a consequence, while Linder treated these athletes differently, Kesterson cannot establish that her coach’s differential treatment was based on her membership in a protected class.
Further, Coach Linder argued that at the time that Kersterson alleged being raped by Tucker, she was not in fact deliberately indifferent but empathetic. Most specifically, the defendant cites an exchange in which she told Kesterson that she viewed her as one of her “kids” and that she offered to facilitate a conversation between Kersterson and Tucker, floating an explanation that her son might not have known or been aware that he had raped Kesterson. The day after Coach Linder learned of the alleged rape, she phoned Kersterson’s mother to apologize and to express a willingness to help as well as communicating to Kesterson later in the summer of 2014 that her son would not be returning to Kent State. While acknowledging that Coach Linder was negligent in not following KSU policy and reporting the incident, “a plaintiff must show more than mere negligence to establish deliberate indifference” (p.9).
As a state employee, Linder may enjoy the protection of statutory immunity under Ohio Revised Code Section 9.86 which delineates that an employee, who in the course of dispensing their job responsibilities, caused harm or injury, cannot be held liable unless their actions were outside of the scope of their official responsibilities or unless the employee acted with “a malicious purpose, in bad faith, or in a wanton or reckless manner” (p. 14). Linder points out that the authority to determine exceptions to statutory immunity rests in the Ohio Court of Claims and not in the United States District Court for the Northern District of Ohio, which is where Kesterson’s complaint was filed. On the matter of Linder’s qualified immunity, she argues that Kesterson has cited to no controlling authority to support a conclusion that “the failure to follow a university’s Title IX reporting policy constitutes an equal protection deprivation….” (p. 13).
Disputes Over Discovery & Other Developments
While the court considers arguments from all parties in this case, disputes regarding discovery has also been waged. In August of 2016, Kesterson filed a complaint with the Supreme Court of Ohio seeking documents that she believes may offer insight into how the University responded to and handled her case, a request that follows an earlier effort to obtain documents through Ohio’s open records laws.
As the parties argue over what documents Kesterson is permitted to have, survivors of sexual violence on college campuses launched a campaign encouraging colleges and universities that mishandled their cases to offer an expression of sincere empathy for their students and graduates so traumatized. Using the hashtag #justsaysorry, survivor-advocates are urging graduates of their schools to publicly pledge to withhold donations until administrations do the right thing and aid in the healing process (New, 2016).
The issue for school administrators inclined to respond to such a heartfelt appeal is the risk of further litigation should such an admission be done publicly or privately. And in the case of Lauren Kesterson, she did receive what appeared to be an empathetic response initially from her coach that then assumed the dimensions of a calculated attempt at damage control born out of conflicts of interests in her roles as mother and coach. Was Coach Linder genuinely trying to respect a request from Kersterson that the matter be handled confidentially, as Linder told KSU investigators in August of 2015, or was she trying to protect her son, minimize disruption to her team to ensure another winning season, and preserve her own reputation and legacy? Within this scenario, what would such an admission on the part of the coach and/or KSU officials for Kesterson after the passage of so many months mean?
In Kent State’s response, it took issue with an assertion made by Kesterson that at an NCAA Division I-A institution, an athlete’s head coach is the University, referring to the assertion as “nonsensical”. Such a notion, however, is not so far afield as to be dismissed so easily. It was Coach Linder who recruited Kesterson and her sister, encouraging them to come to KSU; it was Coach Linder who had the authority to renew Kesterson’s athletic scholarship; it was Coach Linder who had control over how and under what terms Kesterson could leave KSU. In a highly regulated environment where coaches hold such sway over their fate, and where athletes are charged with an obligation to behave as model citizens or risk disciplinary action by their coach and/or the athletic department (see Kent State Student-Athlete Handbook, 2012-2013), athletes have a tacit understanding that the power of the coach bears the force of multiple institutions (team, university, conference, and NCAA). Regardless of the outcome, the power dynamic that existed between Kesterson and Coach Linder was inequitable from the start with the scales tipped clearly in favor of Linder.
*Note: Throughout this summary, the actions of Tucker Linder are referred to as allegations. According to Kesterson, some time after she told her coach what had happened, she received several text messages from the coach’s son. In those messages, he indicated that “[he] never should have put [Ms. Kesterson] in a situation like that” and that “I want to help you overcome what you’re going through so you can get back to enjoying softball and enjoying life,” “[i]f ignoring me, hating me, and forgetting I exist is better for you to cope with this, I understand” (Kesterson v. Kent State Complaint, Feb., 2016, p. 11).
References
Fitzgerald, P. (2016, January 8). EOAA investigative report: Lauren Kesterson, student v. Karen Linder, former Head Softball Coach. Retrieved from https://assets.documentcloud.org/documents/2711287/Investigation-Summary-Report-Lauren-Kesterston.pdf
Lauren Kesterson v. Kent State University and Karen Linder. (2016, February 9). Case: 5:16-cv-00298. Retrieved from http://www.chandralaw.com/Kesterson-Complaint.pdf
Kent State’s answer in
Lauren Kesterson v. Kent State University and Karen Linder (2016, April 20). Retrieved from https://assets.documentcloud.org/documents/2806156/14118294740.txt
Karen Linder’s motion to dismiss
Lauren Kesterson v. Kent State University and Karen Linder. (2016, April 22). Case: 5:16-cv-00298. Retrieved from https://assets.documentcloud.org/documents/2810507/Karen-Linder-s-response-to-Lauren-Kesterson-s.pdf
Kent State University Student-Athlete Handbook. (2012-2013). Retrieved from https://assets.documentcloud.org/documents/1087503/kent-policy.pdf
Lhamon, C. (2011). Dear colleague letter. Washington, DC: United States Department of Education Office for Civil Rights. Retrieved from
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf
New, J. (2016, August 10). Asking for an apology. Inside Higher Education. Retrieved from https://www.insidehighered.com/news/2016/08/10/sexual-assault-victims-urge-colleges-apologize-mishandling-cases
No author. (2015, August 29). Linder resigns at Kent State’s softball coach. Press release. Retrieved from http://www.kentstatesports.com/news/2015/8/29/SB_0829154948.aspx
No author. (2016, June 20). Kent State promotes Eric Oakley to lead softball program. Press release. Retrieved from http://www.kentstatesports.com/news/2016/6/16/kent-state-retains-eric-oakley-to-lead-softball-program.aspx
