By Dr. Rachel S. Silverman
Jake Whalen attended Waunakee High School and graduated in 2024. During his 2021-22 basketball season he was the junior varsity team’s captain and starter. A group of parents, including the Whalens, attempted to remove Dana Mackenzie, the head coach, partly due to concerns of financial misconduct related to the “Waunakee Hoops” youth basketball camp. The parents believed Mackenzie was keeping money that should have gone to the school district or been spent directly on the camp. Jake’s father, Mark Whalen, raised his concerns at a school board meeting in October 2022. Thereafter, Whalen noticed his son’s playing time significantly reduced through the next season until it was almost nonexistent by the end of the season. Jake Whalen was considered a better player than those in the rotation playing on the court. After the 2022-23 season, Mackenzie’s contract was not renewed, and the assistant coach, Tyler Selk, became the new head coach. Selk did not allow Jake Whalen to play in many summer games. Selk commented to Mark Whalen, alluding to this being a consequence or punishment for Whalen’s remarks about the previous coach.
Mark Whalen contacted the Waunakee Police Department in August 2023 and alleged Mackenzie and Selk had been siphoning funds from the booster club back to themselves. This instigated a four-month-long criminal investigation. During the police interviews the coaches asked if Mark Whalen was the one who made the complaint. In October 2023, Jake Whalen met with the school principal and Selk to discuss his place on the basketball team. Jake stated in the meeting he believed he was being retaliated against for comments his father had made. During a preseason meeting for potential team members and parents in November 2023, Selk said he was weeding out the toxic parents. During the next tryouts, Selk had Jake practice with the freshmen players, and the Whalens believed this decision was made to humiliate Jake. Although Jake performed well during the tryouts and met every requirement, Selk cut him from the team.
The Whalens asserted three retaliation claims under the First Amendment. A First Amendment retaliation claim needs three elements: 1. Plaintiff engaged in protected speech. 2. Defendant took action that would dissuade the average person from speaking out. 3. Defendant took adverse action because of the protected speech (Harnishfeger v. United States, 2019; Bridges v. Gilbert, 2009). Defendants, Mackenzie and Selk, assert the complaint does not satisfy any of those elements and that they should be entitled to qualified immunity.
There are many standards for determining protected speech, and the court determined that even with the narrowest protection, the Whalens adequately alleged they engaged in protected speech. Mark and Jake’s comments were not indecent, threatening, or promoting illegal conduct. The comments did not disrupt the basketball team’s operations, and the Whalens’ statements were about alleged misconduct, not bad coaching decisions.
The Whalens allege two adverse actions were taken: 1. Mackenzie reducing Jake’s playing time to almost nonexistent, and 2. Selk cutting Jake from the team in 2023-24. Many courts have confirmed that being cut or suspended from a school sports team could qualify as retaliation under the First Amendment. In B.L. v. Mahoney Area School District (2020) the Supreme Court declared the school district violated the First Amendment by suspending a student from the cheerleading squad for her posts on social media. The courts reason that losing the ability to play a sport would deter the average student or parents from speaking out against a coach, and the Whalens adequately demonstrated this in their case.
The plaintiff must demonstrate that the adverse action resulted directly from the protected speech or was at least a motivating factor for the adverse action. The court agreed the Whalens had enough to state a plausible claim. The Whalens met all three elements needed for a retaliation claim under the First Amendment.
The defendants believed they were entitled to qualified immunity because it is not established that a minor may bring a First Amendment retaliation claim based on a parent’s protected speech. However, Jake’s claim is based on his speech, not his father’s. The other reason defendants stated they were entitled to qualified immunity is that it is not established that a coach can be held liable under the First Amendment for discretionary decisions about the team’s roster. The court stated it is incorrect to assert that discretional decisions may not be subject to the First Amendment. Also, the court disagrees, stating it is clearly established that being benched or removed from a school team can serve as the basis of a retaliation claim. Both reasons the defendants provided for qualified immunity were not adequate. Therefore, the court denied the defendants’ motion to dismiss due to a sufficient case for a retaliation claim under the First Amendment, and defendants are not entitled to qualified immunity.
References
Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)
Harnishfeger v. United States, 943 F. 3d 1105, 1112-13 (7th Cir. 2019)
Whalen v. Mackenzie, 2024 U.S. Dist. LEXIS 230098
Dr. Rachel S. Silverman is an Assistant Professor and Program Coordinator for the Sport and Recreation Management Program in the Kinesiology and Sport Sciences Department at the University of Nebraska at Kearney. Her research agenda focuses on women in sports, including legal, sociological, and ethical aspects of sports management.
