760 F.Supp.3d 743
W.D. Wis.2024Background
- Mark Whalen and his son Jake Whalen sued two Waunakee High School basketball coaches, Dana MacKenzie and Tyler Selk, alleging retaliation after the Whalens accused the coaches of financial misconduct related to a basketball camp.
- The Whalens claim Jake was benched and then cut from the varsity basketball team in retaliation for their protected speech, not because of Jake's athletic performance.
- Mark raised financial concerns publicly at a school board meeting and to police, which resulted in a criminal investigation; both coaches were aware Mark made these accusations.
- Jake confronted Selk (the new head coach) about alleged retaliation at a meeting with the principal; shortly after, Jake was made to practice with freshmen and then cut from the team, despite meeting all requirements and being a better player than some who made the team.
- The Whalens brought First Amendment retaliation claims under 42 U.S.C. § 1983 against both coaches in their individual capacities.
- Defendants moved to dismiss, claiming the facts did not support a First Amendment claim and that they were entitled to qualified immunity; the court denied the motion to dismiss, allowing the case to proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Whalens engaged in protected speech | Mark and Jake both engaged in speech on matters of public concern (misconduct by coaches). | Speech not protected; complaints about coaching aren't First Amendment. | Both Mark and Jake alleged protected speech. |
| Adverse action sufficient for First Amendment claim | Jake's loss of playing time and later being cut from the team were significant enough to deter speech. | Benching/cutting a player is not sufficiently adverse; no loss of liberty or livelihood. | Benching/cutting can deter speech; sufficiently adverse for claim. |
| Retaliatory causation | The timing and context of reduced playing time/cut show retaliation for protected speech. | Decisions were discretionary based on performance, not speech. | Plaintiffs plausibly alleged retaliatory motive; sufficient to proceed. |
| Qualified immunity for coaches | Law is clearly established that retaliatory removal from team violates First Amendment. | No clear law showing these discretionary decisions violate the First Amendment. | Law clearly established; coaches not entitled to qualified immunity at pleading stage. |
Key Cases Cited
- Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (U.S. 1969) (student speech protected unless it disrupts school discipline)
- Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (U.S. 1986) (schools may restrict lewd student speech)
- Morse v. Frederick, 551 U.S. 393 (U.S. 2007) (schools may restrict speech promoting illegal drug use)
- Rutan v. Republican Party of Illinois, 497 U.S. 62 (U.S. 1990) (even minor acts of retaliation can trigger First Amendment claim)
- Hope v. Pelzer, 536 U.S. 730 (U.S. 2002) (a general constitutional rule may clearly establish law for immunity purposes)
- Swetlik v. Crawford, 738 F.3d 818 (7th Cir. 2013) (protected activity must be at least a motivating factor in retaliation)