By John J. Miller. Ph.D.
In the fall of 2016 of Derrick Wesley’s senior year in high school, his mother, Leslie Wesley, challenged incumbent Bill Sniadecki for the South Bend school board (Wright, 2019). During the campaign, Coach Mark Johnson purportedly informed then-candidate, later-school board member Leslie Wesley she would not defeat Sniadecki. In a lawsuit filed by Derrick Wesley, Wesley said Johnson mentioned to other school employees that he planned on cutting him from the varsity basketball team (Derrick v. South Bend Community School Corporation, 2019). However, after a discussion with the school principal, Johnson changed his mind and did not cut Derrick Wesley from the team (Derrick v. South Bend Community School Corporation, 2019).
According to Derrick Wesley, Johnson retaliated against him because of the expressive conduct of his mother (Leslie), father, and aunt, who were self-proclaimed activists (Derrick v. South Bend Community School Corporation, 2019). Ultimately, Derrick Wesley was not cut from the team but received minimal playing time that season. However, after Leslie Wesley won election to the school board, Johnson argued she undermined his influence over the team by organizing team activities behind his back and publicly denigrating him (Wright, 2019).
In December 2018, Derrick Wesley Jr. filed a lawsuit against Johnson and South Bend Community School Corporation (SBCSC), asserting that he was treated contrarily from his teammates during his senior year (Kirkman, 2019). The court documents alleged that during the course of his senior season, Coach Johnson “accused Derrick Wesley of being late to practice when he was not, accused him of messing up on drills when he did not, and punished him for conduct that he let slide in other players” (Derrick v. South Bend Community School Corporation, 2019, p. 6). Other examples of Derrick Wesley’s alleged mistreatment included Johnson unfairly criticizing him, ostracizing him, giving him less playing time in games, and not recognizing him at the 2017 spring banquet (Derrick v. South Bend Community School Corporation, 2019). Wesley claimed that the supposed mistreatment by Coach Johnson was due to retaliation emanating from the political disputes Johnson had with his mother, Leslie Wesley, who was “exercising her free speech rights” (Kirkman, 2019). Finally, Derrick Wesley further contended that Johnson persisted in his acts of retaliation even after the completion of the season by releasing e-mails to the South Bend Tribune and other media outlets that contained private information (Derrick v. South Bend Community School Corporation, 2019).
Court Ruling
The U.S. District Court federal judge, Philip Simon, granted motions to dismiss all claims with prejudice against Johnson and the SBCSC and ordered the case to be closed. Simon further wrote, “The 7th Circuit (Court) has been very clear that it does not recognize a freedom of association claim under the First Amendment that is only based on a familial or intimate association” (p. 10). It was his mother, father, and aunt’s exercise of free and political speech against Johnson, which allegedly was the cause of the retaliation (Derrick v. South Bend Community School Corporation, 2019).
This case was originally removed from state court with the complaint on its third iteration (Derrick v. South Bend Community School Corporation, 2019). The theories outlined in the original complaint Wesley filed at first amended complaint that dealt with Fourteenth Amendment claims. The second complaint abandoned the Fourteenth Amendment and focused on the First Amendment. Judge Simon indicated that Wesley failed in proving multiple opportunities to state a claim and saw no need to provide him another “bite at the apple” (Derrick v. South Bend Community School Corporation, 2019, p. 9). As such, the First Amendment and Fourteenth Amendment will be discussed in the following section.
First Amendment
In this case, Wesley did not allege that he was retaliated against due to something he stated. Instead, he claimed coach Johnson retaliated against him by limiting his game minutes, ostracizing him from team activities, and treating him differently because of statements made by his family members. Doing so infringed on the family members’ ability to exercise their First Amendment freedom of speech and political speech. The First Amendment of the United States Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” ( p. ). However, Wesley admitted that he was not involved in any political speech or expressive actions, but Johnson retaliated against him due to the actions of Wesley’s mother, father, and aunt.
Citing Montgomery v. Stefaniak (2005), the court, in this case, stated the Constitution “protects two distinct forms of free association. The first, freedom of expressive association, arises from the First Amendment and ensures the right to associate for the purpose of engaging in activities protected by the First Amendment. The second, freedom of intimate association, protects the right to enter into and maintain certain close human relationships. The freedom of intimate association receives protection as a fundamental element of personal liberty, and as such, is protected by the due process clauses” (p. 7). As such, the freedom of intimate association is protected by the due process clauses and not from the First Amendment (Montgomery v. Stefaniak, 2005). Yet, the court indicated that Wesley did not claim that his mother, father, or aunt faced any barriers to bringing their own First Amendment retaliation claims. Thus, while the retaliation assertions were based on the First Amendment freedom of speech of others, it did not offer support to the plaintiff’s position (Derrick v. South Bend Community School Corporation, 2019).
Fourteenth Amendment
The Fourteenth Amendment of the United State Constitution section 1 states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The court in DeLaCruz v. Pabey (2007) stated that since the freedom of intimate association is viewed as the basis of personal liberty, it is protected by the due process clause of the Fourteenth Amendment. In the complaint, the defendants filed motions to dismiss contending that Johnson did not directly and substantially interfere with Wesley’s ability to a basic right in a manner that was shocking to the conscience. Instead, Wesley alleged infringement on his First Amendment rights, thereby abandoning any dependence on the Fourteenth Amendment. However, the court held that any protected speech or political activities by himself or family members fell under the second prong of intimate association under the due process clause of the Fourteenth Amendment. Further, the court indicated that allegations of intimate association should be dismissed as they did not elevate to the level of behavior that “shocks the conscience.” According to the court in Rihm v. Hancock County Public Library (2013), for behavior to ‘shock the conscience,’ it must be so brutal and offensive that it does not comport with traditional ideas of fair play and decency (p. 5). However, the proof was not presented to the court that Coach Johnson conducted himself in a way that was brutal nor offensive. As a result, because Wesley had three chances to prove allegations against Johnson and the school and failed each time, all claims against the defendants were dismissed with prejudice (i.e., permanently dismissed).
Conclusion
The ruling, in this case, appears to be the result of a misapplication of Constitutional issues. As Judge Simon wrote, “This isn’t a routine First Amendment case because Wesley does not allege that he himself directly engaged in an activity or speech that was protected by the First Amendment” (Derrick v. South Bend Community School Corporation, 2019, p. 8). In order for the First Amendment to apply, a plaintiff must prove that he or she engaged in an activity protected by the First Amendment (Santana v. Cook County Board of Review, 2012). Yet, it was the exercise of free and political speech by Wesley’s parents and aunt, not Wesley, that was the rationale for the lawsuit. Due to several misapplications of the First and Fourteenth Amendments, the court ruled the case to be closed.
John J. Miller is a Professor, Sport Management at The University of Southern Mississippi.
References
De La Cruz v. Pabey, 2007 U.S. Dist. LEXIS 78616
Derrick v. South Bend Community School Corporation, 2019 U.S Dist. LEXIS 186774.
Kirkman, A. (2019, November 29). Judge dismisses lawsuit by South Bend school board member’s son against ex-Riley coach. South Bend Tribune. Retrieved from https://www.southbendtribune.com/news/education/judge-dismisses-lawsuit-by-south-bend-school-board-member-s/article_d2cde500-1130-58da-b36e-df009b113018.html
Montgomery v. Stefaniak, 2005 U.S. App. LEXIS 10715
Rihm v. Hancock County Pub. Library, 2013 U.S. Dist. LEXIS 170089
Santana v. Cook County Board of Review, 679 F.3d 614, 622 (7th Cir. 2012).
U.S. Const. Amend. I, § 1. Retrieved from https://www.usconstitution.net/xconst_Am1.html
U.S. Const. Amend. XIV, § 1. Retrieved from https://www.usconstitution.net/xconst_Am14.html
Wright, L. (2019, January 22). Son of School board member sues South Bend schools, former Riley High basketball coach. South Bend Tribune. Retrieved from https://www.southbendtribune.com/news/education/son-of-school-board-member-sues-south-bend-schools-former/article_f1129160-a716-5f44-86d0-5b5f3039c074.html
