NORIANA RADWAN, Plaintiff-Appellant, v. WARDE MANUEL, LEONARD TSANTIRIS, and MONA LUCAS, in their individual capacities, and the UNIVERSITY OF CONNECTICUT BOARD OF TRUSTEES, Defendants-Appellees.
No. 20-2194
United States Court of Appeals for the Second Circuit
Decided: November 30, 2022
August Term 2020
(Argued: June 25, 2021)
In 2014, Noriana Radwan, then a women‘s soccer player at the University of Connecticut (“UConn“) and recipient of a one-year athletic scholarship, raised her middle finger to a television camera during her team‘s post-game celebration after winning a tournament championship. The game was being nationally televised*
We agree with the district court‘s decision to grant summary judgment as to Radwan‘s First Amendment and due process claims. With respect to the free speech claim, we do not address the district court‘s determination that there were triable issues of fact as to whether UConn‘s discipline of Radwan violated her First Amendment rights, but rather affirm the district court‘s ultimate holding that summary judgment must be granted in favor of the individual defendants on qualified immunity grounds. Second, although we conclude that Radwan possessed a constitutionally protected property interest in her one-year athletic scholarship, which could only be terminated for cause under its terms, we affirm the grant of summary judgment on this due process claim on the ground that the individual defendants are entitled to qualified immunity because such a right was not clearly established at the time of the scholarship‘s termination.
However, we disagree with the district court‘s conclusion that Radwan‘s Title IX claim does not survive summary judgment. Radwan has put forth sufficient evidence, including a detailed comparison of her punishment to those issued by UConn for male student-athletes found to have engaged in misconduct, to raise a triable issue of fact as to whether she was subjected to a more serious disciplinary sanction, i.e., termination of her athletic scholarship, because of her gender.
Accordingly, we AFFIRM the district court‘s grant of summary judgment as to Radwan‘s procedural due process and First Amendment claims and VACATE the district court‘s judgment to the extent it granted summary judgment to UConn on the Title IX claim. The case is REMANDED to the district court for further proceedings consistent with this opinion.
ROSEMARY M. MCGOVERN, Assistant Attorney General, for William Tong, Attorney General; Michael Skold, Deputy Solicitor General, Hartford, CT, for Defendants-Appellees.
JOSEPH F. BIANCO, Circuit Judge:
In 2014, Noriana Radwan, then a women‘s soccer player at the University of Connecticut (“UConn“) and recipient of a one-year athletic scholarship, raised her middle finger to a television camera during her team‘s post-game celebration after winning a tournament championship. The game was being nationally televised and Radwan‘s gesture was captured on the broadcast. Although she initially was suspended from further tournament games, Radwan was ultimately also punished by UConn with a mid-year termination of her athletic scholarship. She brought this lawsuit against UConn (through its Board of Trustees) and several
We agree with the district court‘s decision to grant summary judgment as to Radwan‘s First Amendment and due process claims. With respect to the free speech claim, we do not address the district court‘s determination that there were triable issues of fact as to whether UConn‘s discipline of Radwan violated her First Amendment rights, but rather affirm the district court‘s ultimate holding that summary judgment must be granted in favor of the individual defendants on qualified immunity grounds. Second, although we conclude that Radwan possessed a constitutionally protected property interest in her one-year athletic scholarship, which could be terminated only for cause under its terms, we affirm the grant of summary judgment on the ground that the individual defendants are entitled to qualified immunity because such a right was not clearly established at the time of the scholarship‘s termination.
Accordingly, we AFFIRM the district court‘s grant of summary judgment as to Radwan‘s procedural due process and First Amendment claims and VACATE the district court‘s judgment to the extent it granted summary judgment to UConn on the Title IX claim. The case is REMANDED to the district court for further proceedings consistent with this opinion.
I. BACKGROUND
A. Factual Background1
In early 2014, Radwan was a high school senior in New York and a skilled soccer player. After receiving offers for athletic scholarships from multiple colleges in Division I of the National Collegiate Athletic Association (“NCAA“),
1. The Terms and Conditions of Radwan‘s Scholarship
In 2014, while a high school senior, Radwan signed both a National Letter of Intent with UConn, stating her intent to enroll at UConn, and a financial aid agreement with UConn, providing that she would receive a one-year, full-tuition, athletic scholarship for her participation on the women‘s soccer team.2 Her athletic scholarship covered the cost of tuition, fees, room, board, and course-related books. As a condition of that scholarship, Radwan was subject to obligations and responsibilities contained in her scholarship agreement with UConn, the UConn 2013-2014 Student-Athlete Handbook, and the 2013-2014 NCAA Division I Manual.
The UConn Student-Athlete Handbook (the “Handbook“) prohibited unsportsmanlike behavior including, but not limited to, “[u]sing obscene or inappropriate language or gestures to officials, opponents, team members or spectators“; “[t]hrowing of objects at . . . spectators“; and “[v]iolating generally recognized intercollegiate athletic standards or the value and standards associated with the University as determined by [the] Head Coach and approved by the Athletic Director.” Id. at 73. The Handbook also noted that student-athletes “become [] representative[s] of [their] team and of [their] University.” Id. at 73. At the beginning of the 2014-2015 school year, Radwan verified that she had an obligation to “read and understand” the Handbook and agreed that a violation of
Under Bylaw 15.3.4.2(c) of the NCAA Division I Manual, “[i]nstitutional financial aid based in any degree on athletics ability may be reduced or canceled during the period of the award if the recipient: . . . (c) Engages in serious misconduct warranting substantial disciplinary penalty.” Id. at 641 (emphasis added). The NCAA bylaws at no point define “serious misconduct.”
The head coach of the women‘s soccer team, defendant Leonard Tsantiris (hereinafter, “Coach Tsantiris“), also developed a team “contract” for the 2014 season to establish additional rules applicable to the team, which all team members received and to which they all agreed. The contract required, inter alia, that team members “comply with all University, Athletic Department and Women‘s soccer program rules concerning conduct and behavior.” Id. at 594.
2. The November 9, 2014 Incident
In August 2014, Radwan began as a student at UConn and a member of the women‘s soccer team. During the 2014-15 school year, defendant Warde Manuel served as Athletic Director for UConn (hereinafter, “AD Manuel“) and Coach Tsantiris served as the head coach for the women‘s soccer team. The assistant
On November 9, 2014, the UConn women‘s soccer team won the AAC tournament championship game against the University of South Florida (“USF“), which was played at USF. The game was broadcast live on ESPNU. Radwan displayed her middle finger to the television camera during the team‘s on-field post-game victory celebration, and the gesture was broadcast nationally. The gesture lasted for a brief moment before Radwan changed it to a peace sign. The ESPNU cameraman, who had filmed Radwan‘s gesture, could not say that the gesture was directed at the opposing team, and further testified that he did not see any players from the opposing team while he was filming. Nevertheless, the parties agree that the gesture “created an immediate social media and internet topic.” Id. at 595.
Shortly after the game, and while still at the venue, Coach Tsantiris confronted Radwan about the gesture and informed her that she was suspended from all team activities, including the upcoming NCAA tournament. According to Radwan, Coach Tsantiris told her he knew she did not mean the gesture, and that it was a “silly mistake.” Id. at 17. After midnight that night, Radwan emailed Assistant Coach Rodriguez to apologize, saying that she was “truly sorry” for the gesture, while recognizing that her apology “in no way” excused it. Id. at 65. She then stopped by the coaches’ office the following day to speak to the coaching staff in person.
Also on November 10, 2014, Ellen Ferris, Associate Commissioner for Governance and Compliance for the AAC, spoke with Deborah Corum, Senior Associate Director of Athletics at UConn (hereinafter “SA Corum“), about Radwan‘s gesture at the game. In a subsequent email to SA Corum, Ferris wrote that the AAC had a video of Radwan‘s gesture at the game, and the AAC believed the gesture was a potential violation of its Code of Conduct. Commissioner Ferris requested from UConn any further information it had about the incident, as well as about any corrective measures that had been or would be taken by UConn. SA Corum forwarded this request to SA Eskin, who responded with a narrative of the incident. Susan Herbst, the President of UConn, asked AD Manuel in an email, dated November 10, 2014, about the penalty being imposed by the AAC, and Manuel responded: “Letter of reprimand. I would believe that would be all they
On November 11, 2014, the AAC issued a Commissioner‘s Report to UConn, which found that, “[a]lthough [Ms. Radwan] indicated to the coach that she ‘was caught in the heat of the moment,‘” her gesture to the ESPNU camera was “a clear violation of the Conference Code of Conduct.” Id. at 256. The AAC also commended UConn‘s actions to address Radwan‘s behavior. Further, attached to the Commissioner‘s Report was a letter of reprimand from the AAC to Radwan.3 The Commissioner‘s Report describes the issuance of a reprimand letter as “typical in cases where an individual makes an obscene gesture.” Id. at 256 (ACC Commissioner‘s Report).
Upon receiving the Commissioner‘s Report, AD Manuel and SA Corum met with Radwan and informed her that she had been sent a letter of reprimand from the AAC. In accepting the letter of reprimand, SA Corum wrote an email, dated November 11, 2014, to Commissioner Ferris stating, in relevant part:
[AD Manuel] and I met with [Radwan] an hour ago and as part of the conversation, he informed her that she had received a letter of reprimand from the Commissioner for violating the Conference Code of Conduct. He also notified her that should she breach this policy in
the future, that this reprimand could be used to indicate that she receive more substantial penalties. [AD Manuel] shared a quote with her that sums up the lesson for her: “The proactive approach to a mistake is to acknowledge it instantly, correct and learn from It.” (Stephen Covey). We believe that [Radwan] has learned from this experience as she is being proactive in acknowledging her mistake and is trying to correct the harm that was done. She is remorseful and took it upon herself to approach [AD Manuel] to express her apologies. She has learned a valuable the [sic] lesson the hard way but we hope that now we can all put this behind us and move on to winning a national championship in women‘s soccer.
Id. at 637-38.
On that same day, AD Manuel sent an email to President Herbst regarding the AAC, stating: “Case closed with the reprimand.” Id. at 638. Until that time, no report about the November 9, 2014 incident had been made to the UConn Office of Community Standards, which addresses alleged violations of the Student Code by UConn students and has specific procedures (including disciplinary hearings) for handling such matters. The UConn women‘s soccer team played NCAA tournament games on November 15 and November 22, 2014, and Radwan did not participate due to her suspension from the team by UConn.
After sitting out the NCAA tournament, Radwan had several communications with UConn AD personnel about her future on the team. At some point before the Thanksgiving break, Assistant Coach Shaw met with
Assistant Coach Rodriguez and Radwan also met after Radwan‘s end-of-season meeting with Coach Tsantiris. She told Radwan that she did not know about her future on the team, but that Coach Tsantiris was very upset about her
3. The Termination of Radwan‘s Scholarship
At UConn, the process for cancelling or terminating a student-athlete‘s athletic scholarship for disciplinary reasons begins with the student-athlete‘s coach making a recommendation to the Sport Administrator. The Sport Administrator, in turn, delivers a recommendation to the Athletic Director, who makes the final decision. The same procedure applies to the decision to remove a student-athlete from a team. The Student-Athlete Handbook sets forth no specific procedure governing the termination of an athletic scholarship in the middle of the year.
In December 2014, at the end of the semester, Coach Tsantiris recommended to SA Eskin and AD Manuel that Radwan‘s scholarship should be terminated for “serious misconduct” —namely, showing her middle finger to the ESPNU camera. AD Manuel, Coach Tsantiris, and SA Eskin met to discuss the termination of Radwan‘s athletic scholarship, and AD Manuel made the final decision to cancel her one-year athletic scholarship for the 2015 spring semester. Assistant Coaches Rodriguez and Shaw agreed with the decision.
On December 22, 2014, Assistant Coach Rodriguez responded to Radwan‘s email, copying Coach Tsantiris and Assistant Coach Shaw, and advised Radwan that the “decision [wa]s final” and that the Athletic Department and coaching staff were “moving forward with cancelling [he]r aid for the spring semester based on misconduct.” Id. at 327. The email also advised that, although her athletic scholarship was being cancelled, Radwan could remain as a student at UConn in the spring. In addition, Assistant Coach Rodriguez offered in the email “to do what we can to help [Radwan] find a program” if she sought to transfer. Id. at 327.
On January 5, 2015, Suzanne Pare, Assistant to the Director of Student Financial Aid Services at UConn, emailed Radwan on behalf of FAD Lucas. She wrote “to find out if [Radwan was] going to request an appeal hearing regarding [her] financial aid” and asked that Radwan forward any request she might have sent to FAD Lucas the previous week, since FAD Lucas had been away from the office. Id. at 515-16.
On January 29, 2015, Lucas notified Radwan that her appeal “request ha[d] been denied because the request for a hearing was not submitted within 14 business days of the December 22, 2014 notification letter.” Id. at 517. Radwan and Financial Aid Services exchanged subsequent email communications in early February 2015 regarding her desire to appeal, and her belief that her appeal was timely because she had requested a hearing on January 14, 2015, which was within 14 days of her receipt of the notification letter.
4. Radwan‘s Transfer to Another University
In early January 2015, the head women‘s soccer coach at Hofstra University (“Hofstra“) offered Radwan the opportunity to transfer there and join the women‘s soccer team with a partial academic scholarship. Radwan accepted the coach‘s offer. On January 13, 2015, Radwan submitted a request to UConn to be released from her obligations under her National Letter of Intent. After that request was granted, she cancelled her enrollment at UConn for the spring of 2015. On January 21, 2015, Radwan received a written athletic scholarship offer from Hofstra, which she then signed, and began classes at Hofstra in late January 2015. Radwan graduated from Hofstra in 2018.
B. Procedural History
On December 14, 2017, the district court dismissed Radwan‘s state law claims against UConn and all of her claims against the Individual Defendants in their official capacities.7 Following discovery, the defendants moved for summary
judgment on all remaining claims, and Radwan cross-moved for summary judgment on her First Amendment and due process claims.On June 6, 2020, the district court granted summary judgment in favor of the defendants on all of the remaining claims. Radwan v. Univ. of Conn. Bd. of Trs., 465 F. Supp. 3d 75, 114 (D. Conn. 2020). In particular, as relevant to this appeal, the district court granted summary judgment in favor of the Individual Defendants on the First Amendment and due process claims brought under
With respect to the First Amendment claim, the district court determined that Radwan had a “viable First Amendment claim” because there were triable issues of fact as to whether she had engaged in expressive conduct protected by the First Amendment. Id. at 108-09. In particular, the district court concluded that, to the extent the defendants relied upon the standards for regulating student speech established by the Supreme Court in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), and Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), a reasonable jury could find that the decision to
As to the due process claim, the district court held that the Individual Defendants were entitled to summary judgment because Radwan “failed to establish that her contract for a one-year athletic grant-in-aid created a constitutionally protect[ed] property interest,” as required to pursue a due process claim. Id. at 107. Given the absence of the requisite property interest, the district court noted that it did not need to reach the question of whether the process Radwan received was sufficient, but then alternatively concluded that “UConn did have a procedure for appealing the cancellation of Ms. Radwan‘s scholarship; she, however, did not timely appeal the decision.” Id. Furthermore, the district court alternatively held that, “[e]ven if the Court did find a protected property interest in this case, the absence of binding caselaw would warrant dismissal of this constitutional claim under the doctrine of qualified immunity.” Id. at 107 n.4.
With respect to the Title IX claim, the district court held that UConn was entitled to summary judgment because Radwan failed to provide evidence from which an inference of discriminatory motive could be drawn and, thus, did not establish a prima facie case under Title IX. Id. at 98-100. The district court reasoned
This appeal followed.
After discussing the applicable standard of review, we first consider Radwan‘s First Amendment claim. Next, we assess her procedural due process claim. Finally, we analyze Radwan‘s Title IX claim.
A. The Standard of Review
We review a grant of summary judgment de novo. 1077 Madison St., LLC v. Daniels, 954 F.3d 460, 463 (2d Cir. 2020). In doing so, we “constru[e] the evidence in the light most favorable to the nonmoving party and draw[] all reasonable inferences in that party‘s favor.” Kuebel v. Black & Decker Inc., 643 F.3d 352, 358 (2d Cir. 2011). Granting summary judgment is required where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
B. First Amendment Claim
The district court found that Radwan had raised a triable issue of fact as to whether the decision to terminate her scholarship because of her middle finger gesture on the soccer field violated her First Amendment rights, but granted summary judgment to Coach Tsantiris and AD Manuel on the ground of qualified immunity. Radwan, 465 F. Supp. 3d at 108-10. As set forth below, we affirm the
1. Standard for Qualified Immunity
Under the two-part inquiry established by the Supreme Court, government officials are entitled to qualified immunity on a
A clearly established right is one that is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Reichle, 566 U.S. at 664 (internal quotation marks omitted and alteration adopted). “We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). “This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (internal quotation marks omitted). “In determining if a right is clearly established, this Court looks to whether (1) it was defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has confirmed the existence of the right, and (3) a reasonable defendant would have understood that his conduct was unlawful.” (Doninger II), 642 F.3d 334, 345 (2d Cir. 2011). Absent controlling authority, a plaintiff must show “a robust consensus of cases of persuasive authority.” De La Rosa v. White, 852 F.3d 740, 746 (8th Cir. 2017) (quoting al-Kidd, 563 U.S. at 742). “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Id. at 346 (internal quotation marks omitted).
“[T]he absence of legal precedent addressing an identical factual scenario does not necessarily yield a conclusion that the law is not clearly established.” Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 251 (2d Cir. 2001). “Indeed, it stands to reason that in many instances the absence of a reported case with similar facts demonstrates nothing more than widespread compliance with the well-recognized applications of the right at issue on the part of government actors.” Id. (internal quotation marks omitted); see id. at 253 (“To the extent that no case applying this right in the educational setting has previously arisen in our circuit, we view this unremarkable absence as a strong indication that the right to be free from excessive force is so well-recognized and widely observed by educators in public schools as to have eluded the necessity of judicial pronouncement.“).
2. Free Speech and Schools
In order to determine whether the defendants are protected by qualified immunity, we summarize some basic tenets of First Amendment law and the case authority applying those tenets to student speech, including more specifically in the university setting.
The protections of the First Amendment are not limited to spoken words, but rather include gestures and other expressive conduct, even if vulgar or offensive to some. For example, in Cohen v. California, 403 U.S. 15 (1971), the Supreme Court held that an individual wearing a jacket bearing the words “F**k the Draft” in a courthouse corridor could not be prosecuted for disturbing the peace. Id. at 16, 25-26; see also Virginia v. Black, 538 U.S. 343, 366-67 (2003) (holding
Consistent with this precedent, although “the gesture generally known as ‘giving the finger’ . . . is widely regarded as an offensive insult,” Bad Frog Brewery, Inc. v. N.Y. State Liquor Auth., 134 F.3d 87, 91 (2d Cir. 1998), it is a gesture that is generally protected by the First Amendment. See, e.g., Cruise-Gulyas v. Minard, 918 F.3d 494, 497 (6th Cir. 2019) (“Any reasonable [police] officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment.“); Garcia v. City of New Hope, 984 F.3d 655, 669 (8th Cir. 2021) (“[Plaintiff‘s] raising his middle finger at [a police officer] is a rude and offensive gesture but nonetheless, under current precedent, is a constitutionally protected speech activity.“); Batyukova v. Doege, 994 F.3d 717, 731 (5th Cir. 2021) (same); accord Swartz v. Insogna, 704 F.3d 105, 111 (2d Cir. 2013) (holding that giving the middle finger could not support arrest for disorderly conduct); see generally Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. DAVIS L. REV. 1403, 1407-08, 1434 (2008) (observing that the middle finger can express a variety of emotions—such as anger, frustration, defiance, protest, excitement—or even “possess[] political or artistic value“).
In Fraser, the Supreme Court held it was permissible for a school district to impose sanctions on a high school student for “his offensively lewd and indecent speech.” Id. at 685; see also id. at 683 (“The pervasive sexual innuendo in Fraser‘s speech was plainly offensive to both teachers and students—indeed to any mature person. By glorifying male sexuality, and in its verbal content, the speech was acutely insulting to teenage girl students.“). In doing so, the Supreme Court emphasized that “[t]he schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct such as that indulged in by this confused boy.” Id. at 683; see also Doninger v. Niehoff (Doninger I), 527 F.3d 41, 48 (2d Cir. 2008) (“Vulgar or offensive speech—speech that an adult making a
The Supreme Court has likewise made clear that high schools may, under certain circumstances, lawfully regulate student speech that is related to a school activity. For example, in Hazelwood, the Court held that high school officials did not violate the First Amendment when they censored certain articles in a school newspaper about pregnancy and divorce because the articles might reasonably be perceived by members of the school community and the public to “bear the imprimatur of the school.” 484 U.S. at 271. The Court declined to apply the Tinker standard in such situations, reasoning as follows:
[A] school may in its capacity as publisher of a school newspaper or producer of a school play disassociate itself, not only from speech that would substantially interfere with its work or impinge upon the rights of other students, but also from speech that is, for example, ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences. A school must be able to set high standards for the student speech that is disseminated under its auspices—standards that may be
higher than those demanded by some newspaper publishers or theatrical producers in the “real” world—and may refuse to disseminate student speech that does not meet those standards.
Id. at 271-72 (internal citations and quotation marks omitted and alterations adopted). Similarly, in Morse v. Frederick, 551 U.S. 393 (2007), the Court held that a high school did not violate the First Amendment when it suspended a student for unfurling a banner that read “BONG HiTS 4 JESUS” at an off-campus, school-approved social event. Id. at 396-98. In particular, the Court emphasized that “the rule of Tinker is not the only basis for restricting student speech,” id. at 406, and “a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use,” id. at 403.
Moreover, in the recent case of Mahanoy Area School District v. B.L. ex rel. Levy, 141 S. Ct. 2038 (2021), although the Court held that a high school violated a student‘s First Amendment rights when it suspended her from the cheerleading squad for using vulgar language in a social media post, id. at 2048, the Court also “consider[ed] the school‘s interest in teaching good manners and consequently in punishing the use of vulgar language aimed at part of the school community,” id. at 2047. In doing so, the Court emphasized, under the circumstances of that
It is also important to note that these Supreme Court cases all addressed the First Amendment question in the context of students in public schools from grades K-12. Moreover, the Court has suggested that these holdings may not apply with equal force in college and university settings. See Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 238 n.4 (2000) (Souter, J., concurring) (discussing
The Third Circuit has cogently summarized this dichotomy in the Supreme Court‘s First Amendment jurisprudence and explained that the application of the free speech principles may vary (in whole or in part) depending upon whether the setting is a public university or a public elementary or secondary school:
Public universities have significantly less leeway in regulating student speech than public elementary or high schools. Admittedly, it is difficult to explain how this principle should be applied in practice and it is unlikely that any broad categorical rules will emerge from its application. At a minimum, the teachings of Tinker, Fraser, Hazelwood, Morse, and other decisions involving speech in public elementary and high schools, cannot be taken as gospel in cases involving public universities. Any application of free speech doctrine derived from these decisions to the university setting should be scrutinized carefully, with an emphasis on the underlying reasoning of the rule to be applied.
McCauley v. Univ. of the V.I., 618 F.3d 232, 247 (3d Cir. 2010).
Radwan argues that “[i]t was clearly established as of December 22, 2014 that the First Amendment bars officials at public universities from punishing student speech on the basis of its viewpoint” and “[s]howing the middle finger—even if offensive—expresses a viewpoint.” Appellant‘s Br. at 15. Radwan contends that the Supreme Court cases outlined above, which have allowed schools to regulate student speech—including Fraser, Hazelwood, and Morse—have no application here because those decisions apply only to children in public elementary and high schools, and not to students in public universities. Radwan asserts, instead, that the Supreme Court‘s decision in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973) (per curiam), “is on all fours with this case,” and “Ms. Radwan‘s First Amendment rights were as clearly established as First Amendment rights can be.” Appellant‘s Br. at 30. As set forth below, we disagree and hold that Radwan‘s free speech rights in this situation are not clearly established and that the Individual Defendants are therefore shielded from liability on the First Amendment claim under the doctrine of qualified immunity.
As a threshold matter, to the extent Radwan contends that the First Amendment claim in this case is controlled by Papish, we find that argument
Papish is readily distinguishable, however, as Ms. Papish was not speaking in the context of a school-sponsored event or activity. Id. at 667; see also id. at 675 (Rehnquist, J., dissenting) (referring to the space in which Ms. Papish “hawked her newspaper” (emphasis added)). The newspaper had been “sold on [the University‘s] campus for more than four years pursuant to an authorization obtained from the University Business Office,” id. at 667 (majority opinion), but there is no indication in Papish that the school had any affiliation with the paper aside from extending the bare permission to sell it—much as a university might permit the New York Times to be sold on campus. In short, Ms. Papish was speaking “on her own time,” Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 141 S. Ct. 2038, 2047 (2021), even if she did so on the university‘s property.
Here, there is no indication that the Individual Defendants would have taken any disciplinary action against Radwan had she displayed the middle finger in some other university setting, such as a campus dormitory, classroom, or other student gathering. Instead, the Individual Defendants were regulating Radwan‘s ability to display a vulgar or offensive gesture as an athlete on the university‘s sports team, wearing the university‘s jersey, during a university sports event. And, contrary to Radwan‘s suggestion, such a situation is different from the use
must always be applied “in light of the special characteristics of the . . . environment” in the particular case.” (quoting Tinker, 393 U.S. at 506)).
Similarly, to the extent that Radwan suggests that the Supreme Court has made clear that the holdings of Fraser, Morse, and Hazelwood do not apply at all in the university setting, we find insufficient support for that suggestion. Indeed, in Hazelwood, where the Court established that schools may regulate “student speech in school-sponsored expressive activities” that “members of the public might reasonably perceive to bear the imprimatur of the school,” 484 U.S. at 271, 273, the Court explicitly left open the issue of whether that rule would apply at the university level, see id. at 273 n.7 (“We need not now decide whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level.“). This language contradicts Radwan‘s assertion that the Supreme Court, fifteen years earlier in Papish, foreclosed the ability of universities to regulate offensive or vulgar speech by students representing the school at school-sanctioned events. See also Amidon v. Student Ass‘n of State Univ. of N.Y. at Albany, 508 F.3d 94, 105 (2d Cir. 2007) (“[C]ases like Hazelwood explicitly reserved the question of whether the substantial deference shown to high school administrators was appropriate with respect to
Given the ambiguity in the Supreme Court‘s jurisprudence, we have generally noted that “[t]he law governing restrictions on student speech can be difficult and confusing, even for lawyers, law professors, and judges” and “[t]he relevant Supreme Court cases can be hard to reconcile, and courts often struggle to determine which standard applies in any particular case.” Doninger II, 642 F.3d at 353; see also Abbott v. Pastides, 900 F.3d 160, 174-75 (4th Cir. 2018) (“As we and other courts have recognized, First Amendment parameters may be especially difficult to discern in the school context.” (collecting cases)). The Supreme Court itself has commented on the difficulty of this judicial task. See Morse, 551 U.S. at 401 (“There is some uncertainty at the outer boundaries as to when courts should apply school speech precedents“); see also id. at 418 (Thomas, J., concurring) (noting
Particularly with respect to the application of these standards to vulgar or obscene speech in the university setting, the Third Circuit in McCauley is not the only lower court that has struggled to determine the precise boundaries of a university‘s lawful authority to regulate such speech. Indeed, some courts have held that Hazelwood applies at least to some extent in the university setting, but that view is not unanimous. Compare Axson-Flynn v. Johnson, 356 F.3d 1277, 1289 (10th Cir. 2004) (“[W]e hold that the Hazelwood framework is applicable in a university setting for speech that occurs in a classroom as part of a class curriculum.“), Keeton v. Anderson-Wiley, 664 F.3d 865, 875-76 (11th Cir. 2011) (applying Hazelwood in university setting), and Hosty v. Carter, 412 F.3d 731, 735 (7th Cir. 2005) (en banc) (“We hold . . . that Hazelwood‘s framework applies to subsidized student newspapers at colleges as well as elementary and secondary schools.“), with Kincaid v. Gibson, 236 F.3d 342, 346 n.5 (6th Cir. 2001) (en banc) (noting, in finding a First Amendment violation, that Hazelwood had “little application” to a university‘s attempt to regulate content in a college yearbook);
Other courts, including this Court, have still not decided the issue. See, e.g., Collins v. Putt, 979 F.3d 128, 134 n.3 (2d Cir. 2020) (applying Hazelwood to university setting because neither party argued otherwise); Oyama, 813 F.3d at 864 n.10 (“In determining that Hazelwood does not provide the appropriate framework for evaluating a First Amendment claim such as [the student‘s], we need not and do not decide whether the Hazelwood standard can ever apply in the context of student speech at the college and university level.“).
Some courts also have extended Fraser to the university setting in holding that an institution of higher learning has the ability to discipline a college teacher or student for the use of vulgar language in certain situations. For example, in Sasser v. Board of Regents of the University System of Georgia, No. 1:20-cv-4022-SDG, 2021 WL 4478743 (N.D. Ga. Sept. 30, 2021), a university released a student-athlete from its baseball team after the student, while a spectator at a university football game, used a racial slur to refer to one of the student football players. Id. at *1. The court noted that “[t]he bounds of [plaintiff‘s] First Amendment rights while
[Plaintiff‘s] intentions aside, he used a racially offensive term to describe a fellow student and did so in front of other students at a school sponsored, on-campus event. [Plaintiff‘s] conduct more resembles the underlying conduct in Fraser than in Tinker, and Defendants were well within their authority as educators to discipline [plaintiff] for this speech. The Court need not find that [plaintiff‘s] statement was harassing or threatening to come to this conclusion.
Id.; cf. Martin v. Parrish, 805 F.2d 583, 585-86 (5th Cir. 1986) (”Fraser admittedly involved a high school audience and it may be suggested that its justification for speech restraints rests largely on this fact. Nevertheless, we view the role of higher education as no less pivotal to our national interest . . . . To the extent that [plaintiff teacher‘s] profanity was considered by the college administration to inhibit his effectiveness as a teacher, it need not be tolerated by the college any more than Fraser‘s indecent speech to the Bethel school assembly.“).
Moreover, even with respect to the courts that have declined to apply Hazelwood to a particular type of speech at the university level, those cases involved student speech in other contexts, such as a student newspaper or yearbook. We are aware of no court that has suggested that a university is prohibited under the First Amendment from disciplining a student-athlete for
proscribed on the college field, it cannot be determined—as the district court suggested—by the standard set forth in Fraser.“). Although we agree that the Supreme Court has suggested that its analyses in addressing the First Amendment in the public elementary and high school settings (including Hazelwood and Fraser) may not apply equally to the university setting, see Southworth, 529 U.S. at 238 n.4 (2000) (Souter, J., concurring), neither the Supreme Court nor any circuit court has yet provided an alternative legal standard or framework to help university administrators discern the precise constitutional line in such circumstances, especially when the student engages in speech while wearing the university‘s uniform as part of an extracurricular activity.
As a result, courts have not hesitated to grant qualified immunity to university officials who attempt to regulate speech at the university level in the uncertain waters of Hazelwood, Fraser, and other Supreme Court precedent. See, e.g., Hosty, 412 F.3d at 738 (granting qualified immunity to university officials on First Amendment claim and noting that “[p]ost-Hazelwood decisions likewise had not ‘clearly established’ that college administrators must keep hands off all student newspapers“); Sasser, 2021 WL 4478743, at *6 (holding, in the alternative, that qualified immunity applied to university official‘s decision because “[d]isciplining
We reach the same conclusion here. In light of the absence of a decision by the Supreme Court or this Court on the application of the First Amendment to vulgar speech (or expression) by a university student while representing the university at a school-sponsored event, as well as the lack of any consensus among other courts on this issue, we conclude that the defendants are entitled to qualified immunity.12 As the Supreme Court has emphasized, to find liability for a
Accordingly, we conclude that the Individual Defendants are entitled to summary judgment on qualified immunity grounds with respect to the First Amendment claim.13
Radwan also alleges that the Individual Defendants violated her constitutional rights under the Due Process Clause by failing to provide her with sufficient process in the termination of her one-year scholarship.
“A procedural due process claim is composed of two elements: (1) the existence of a property or liberty interest that was deprived and (2) deprivation of that interest without due process.” Bryant v. N.Y. State Educ. Dep‘t, 692 F.3d 202, 218 (2d Cir. 2012). With respect to the first element, Radwan contends that Connecticut law created a constitutionally protected property interest in her athletic scholarship because her contract with UConn (1) had a set duration (one year) and (2) contained a for-cause termination provision.
As an initial matter, we disagree with the district court that Radwan‘s one-year athletic scholarship was not a constitutionally protected property interest. Instead, we conclude that because Radwan‘s scholarship was guaranteed for a fixed term and terminable only for cause, it was a property interest protected by the Constitution. However, because this rule was not clearly established at the time Radwan‘s scholarship was terminated, we conclude that defendants are entitled to qualified immunity on this claim as well.
As with the First Amendment claim, we apply a two-step test for determining whether qualified immunity bars Radwan‘s due process claim. Wesby, 138 S. Ct. at 589 (holding that government officials are entitled to qualified immunity “unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time” (internal quotation marks omitted)). Moreover, as noted supra, a court need not address the merits of the statutory or constitutional right at step one if qualified immunity exists based on step two. We recognize that there are often sound reasons, including standard principles of constitutional avoidance, to forgo analysis of the constitutional question if qualified immunity applies because any such constitutional right was not clearly established, as we did with respect to Radwan‘s First Amendment claim. See, e.g., Lyng v. Nw. Indian Cemetery Protective Ass‘n, 485 U.S. 439, 445 (1988) (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.“); see also Camreta v. Greene, 563 U.S. 692, 707 (2011) (“In general, courts should think hard, and then think hard again, before turning small cases into large ones.“). However, the Supreme Court also has emphasized that “it remains true that following the two-step sequence—
Notwithstanding the existence of qualified immunity at step two, we conclude that the unsettled nature of the “property interest” issue in the due process claim presents precisely such a situation. Failing to rule on this threshold constitutional question “may frustrate ‘the development of constitutional precedent’ and the promotion of law-abiding behavior.” Camreta, 563 U.S. at 706 (quoting Pearson, 555 U.S. at 237). Moreover, our ruling on the “property interest” issue involves a straight-forward analysis that does not waste scarce judicial resources and undoubtedly will provide useful guidance to public officials in connection with future terminations of fixed-term athletic scholarships.14 See, e.g.,
“To determine whether a plaintiff was deprived of property without due process of law in violation of the Fourteenth Amendment, we must . . . identify the property interest involved.” Taravella v. Town of Wolcott, 599 F. 3d 129, 133 (2d Cir. 2010) (internal quotation marks omitted). Such property interests are typically not created by the Constitution, but instead “by an independent source such as state statutes or rules entitling the citizen to certain benefits.” Goss v. Lopez, 419 U.S. 565, 572-73 (1975); accord Martz v. Inc. Vill. of Valley Stream, 22 F.3d 26, 30 (2d Cir. 1994) (“When determining whether a plaintiff has a claim of entitlement, we focus on the applicable statute, contract or regulation that purports to establish the benefit.“). For a plaintiff to have a protected property interest, she “must have more than an abstract need or desire for it. [Sh]e must have more than a unilateral expectation of it. [Sh]e must instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).
This Court has been “reluctant to surround the entire body of public contract rights with due process protections.” S & D Maint. Co. v. Goldin, 844 F.2d 962, 967 (2d Cir. 1988). Because “not every contractual benefit rises to the level of a constitutionally protected property interest,” we look at whether the interest
Moreover, we have previously found that certain contractual rights in an educational context may create the sort of reliance that gives rise to a
Applying those principles here, we hold that Radwan‘s one-year athletic scholarship—because it was for a fixed period and terminable only for cause, and because Radwan reasonably expected to retain the scholarship‘s benefits for that set period—created a contractual right that rose to the level of a constitutionally protected property interest.
First, it is inarguable that Radwan‘s scholarship was for a set term of one year, terminable only for cause. The for-cause contractual termination provision appeared in three sources—(1) Radwan‘s financial aid agreement, (2) UConn‘s Student-Athlete Handbook, and (3) UConn‘s adoption of NCAA regulations15—
Second, Radwan‘s reliance upon her scholarship further establishes that it is a constitutionally protected interest. Radwan exhibited a general dependence on her scholarship, relying upon it as her exclusive source of funding for housing, college tuition, and books, as is common for many collegiate athletes.16 See Roth,
The Individual Defendants’ arguments to the contrary are unavailing. The Individual Defendants first claim that the mere fact that Radwan‘s scholarship was
The Individual Defendants further claim that because Radwan‘s athletic scholarship could be “immediately reduced or cancelled during the term of the award if plaintiff engaged in serious misconduct,” the scholarship did not create the “dependence” or “permanence” necessary to create a constitutionally protected property interest. Appellees’ Br. at 36-37. However, what the Individual Defendants refer to is merely a for-cause provision; taking their
In sum, we hold that Radwan possessed a constitutionally protected property interest in her fixed-term athletic scholarship that could be terminated only for cause. We emphasize that we do not address whether the prospective renewal of an athletic scholarship would rise to the level of a protected property interest.
In light of this constitutionally protected property interest, Radwan asserts that UConn violated her due process rights by providing her with no pre-deprivation notice, hearing, or opportunity to be heard, and by failing to provide a neutral decisionmaker. However, we need not address that issue. Even assuming arguendo that Radwan did not receive the process she was due, we
2. Qualified Immunity
Due process claims are a “particularly fertile ground for qualified immunity, given that state officials can be liable only for violations of rights that have been established beyond debate and with particularity by existing constitutional precedents.” Francis, 942 F.3d at 149 (internal quotation marks omitted and alterations adopted). “[I]t will be a rare case in which prior precedents have definitively resolved a novel claim of procedural due process.” Id. Radwan has presented such a novel claim; this Court has never held that an athletic scholarship creates a constitutionally protected right.
Therefore, even though we now hold that a fixed-term athletic scholarship terminable only for cause gives rise to a constitutionally protected property right, qualified immunity protects the Individual Defendants here from liability. See id. (identifying “a constitutional violation pursuant to such an analysis,” but
That does not end our inquiry, however, as even without any controlling authority, a “robust consensus” could have sufficed to have clearly established such a property right. De La Rosa, 852 F.3d at 746. But no such consensus exists. As an initial matter, over the years courts have rejected the notion that an individual has a general right to play or participate in collegiate athletics. See, e.g., Equity in Athletics, Inc. v. Dep‘t of Educ., 639 F.3d 91, 109 (4th Cir. 2011) (noting courts “have consistently held that the interest of the student athletes in participating in intercollegiate sports was not constitutionally protected” (internal quotation marks omitted)); Spath v. Nat‘l Collegiate Athletic Ass‘n., 728 F.2d 25, 28-29 (1st Cir. 1984) (refusing to recognize a “right to play” hockey); Colo. Seminary (Univ. of Denver) v. Nat‘l Collegiate Athletic Ass‘n, 570 F.2d 320, 321 (10th Cir. 1978) (per curiam) (affirming the trial court‘s ruling “that the interest of the student athletes in participating in intercollegiate sports was not constitutionally protected, and that no constitutionally protected right of the University had been violated“); Parish v. Nat‘l Collegiate Athletic Ass‘n,, 506 F.2d 1028, 1034 (5th Cir. 1975) (“[W]e have held that the privilege of participating in interscholastic athletics
In contrast, there is no similar consensus that there is a due process right associated with an athletic scholarship. Although some courts have observed that
Moreover, to the extent that Radwan relies on our decisions in Taravella or Ezekwo to argue that her property interest in her athletic scholarship was clearly established, she overlooks the “flexible, context-dependent approach” that a due process analysis requires. Fiacco, 942 F.3d at 149. Although we now apply the principles articulated in those cases to conclude that Radwan has a constitutionally
In sum, at the time of the termination of Radwan‘s scholarship, no clear rule had been enunciated that could have alerted the Individual Defendants that Radwan had a constitutionally protected property right established beyond debate. Thus, as it was not clearly established that an athletic scholarship creates a constitutionally protected interest, the Individual Defendants are entitled to qualified immunity, and we accordingly affirm the district court‘s grant of summary judgment as to Radwan‘s due process claim.
D. Title IX
Radwan also asserts a Title IX claim in which she alleges that her scholarship was terminated on the basis of her sex. The district court determined that Radwan failed to present any evidence of male student-athletes at UConn similarly situated to her who received better treatment as it related to alleged misconduct, or any
1. Standard for Title IX
In relevant part, Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
In the first category, the claim is that the plaintiff was innocent and wrongly found to have committed an offense. In the second category, the plaintiff alleges selective enforcement. Such a claim asserts that, regardless of the student‘s guilt or innocence, the severity of the penalty and/or the decision to initiate the proceeding was affected by the student‘s gender.
Id. In this case, Radwan pursues only a theory of selective enforcement.
In 1991, Congress amended Title VII to make clear that, with respect to a discrimination claim, a plaintiff can prove causation by demonstrating that discrimination was a “motivating factor” in the unlawful employment practice, even if it was not the only factor—often referred to as a “mixed motive” case. See Civil Rights Act of 1991, Pub. L. No. 102-166, § 107(a), 105 Stat. 1071 (codified as
Although Title VII caselaw often provides a useful framework for analyzing Title IX claims, the Supreme Court has acknowledged the need to depart from Title VII standards in the Title IX context when the statutory text or particular facts of a case so require. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 175 (2005) (contrasting Title IX and Title VII and acknowledging that the comparison may be of “limited use“); see also Cohen v. Brown Univ., 101 F.3d 155, 176 (1st Cir. 1996) (“It does not follow from the fact that [Title IX] was patterned after a Title VII provision that Title VII standards should be applied to a Title IX analysis of whether an intercollegiate athletics program equally accommodates both genders . . . .“); cf. North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521 (1982) (“There is no doubt that if we are to give Title IX the scope that its origins dictate, we must accord it a sweep as broad as its language.” (internal quotation marks omitted and alterations adopted)). In no small part, the difference between interpretations of these statutes exists because “athletics presents a distinctly different situation from admissions and employment and requires a different analysis in order to determine the existence vel non of discrimination.” Cohen, 101 F.3d at 177.
With respect to the causation element under Title IX, although we have suggested that, as in a discrimination claim under Title VII, causation is demonstrated “where gender is a motivating factor in the decision to discipline,” Yusuf, 35 F.3d at 715, the Supreme Court has since held that similar language in other contexts, such as discrimination claims under
We have not revisited this issue under Title IX in the wake of this Supreme Court precedent. See Holcomb v. State Univ. of N.Y. at Fredonia, 698 F. App‘x 30, 31 (2d Cir. 2017) (summary order) (declining to decide whether “but-for” causation applies to Title IX‘s antiretaliation provision). In light of this Supreme Court precedent and its own precedent, the Fourth Circuit has held that the “on the basis of sex” language in Title IX requires “but-for” causation for claims alleging discriminatory school disciplinary proceedings. Sheppard v. Visitors of Va. State Univ., 993 F.3d 230, 236-37 (4th Cir. 2021). More specifically, the Fourth Circuit explained that, although Congress expressly amended Title VII in the Civil Rights Act of 1991 to include the “motivating factor” standard for discrimination claims under that statute, it did not do so for Title IX and, thus, the court was “constrained to the text of Title IX and [Fourth Circuit] binding precedent interpreting the same or similar language.” Id. at 237 n.7. But see Doe v. Princeton Univ., 30 F.4th 335, 343-44 (3d Cir. 2022) (utilizing, on an appeal from a motion to dismiss, a
However, we need not address this issue here because Radwan concedes that the “but-for” standard applies to her Title IX claim and, in any event, we conclude that Radwan‘s proof is sufficient to preclude summary judgment even under that higher standard.
2. Similarly Situated Individuals
Under Title VII, discriminatory intent can be shown by either direct evidence of discriminatory animus or circumstantial evidence of such animus, including by showing disparate treatment among similarly situated employees. Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). “‘[T]he standard for comparing conduct requires a reasonably close resemblance of the facts and circumstances of plaintiff‘s and comparator‘s cases, rather than a showing that both cases are identical.’ In other words, the comparator must be similarly situated to the plaintiff ‘in all material respects.‘” Ruiz v. County of Rockland, 609 F.3d 486, 494 (2d Cir. 2010) (quoting Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997)); see also Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000) (“That an employee‘s conduct need not be identical to that of another for the
Likewise, under Title IX, to support a claim of selective enforcement using this type of evidence, a female student must show that a male student in circumstances sufficiently similar to her own was treated more favorably by the university. See generally Yusuf, 35 F.3d at 714-16; see also Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 74 (1st Cir. 2019) (citing Yusuf and analyzing whether a
3. Analysis
As the district court stated, for purposes of summary judgment, UConn disputes only whether Radwan has satisfied the fourth prong of a prima facie case under Title IX—that is, whether there is evidence supporting an inference of discriminatory intent. See Radwan, 465 F. Supp. 3d at 97. The district court held that Radwan did not submit evidence of more favorable treatment of similarly situated male student-athletes at UConn, who were alleged to have engaged in misconduct, that could raise an inference of discriminatory intent, nor did she present any other evidence that could provide such an inference. Id. at 99-100. The district court also concurred in UConn‘s alternative argument that, even if Radwan demonstrated a prima facie case, she had failed to submit sufficient evidence to demonstrate discriminatory intent in light of UConn‘s non-discriminatory justification for its decision—namely, that Radwan‘s vulgar gesture constituted serious misconduct. Id. at 100-01. More specifically, the district court noted that, “in the absence of comparators similarly situated to her
We disagree. Radwan has set forth several categories of evidence to support her Title IX claim, including evidence about: (1) the treatment of male student-athletes at UConn, who engaged in misconduct and received a lesser disciplinary sanction; (2) inconsistent reasons for the level of punishment for Radwan that were articulated by several UConn officials, as well as varying assessments over time by UConn officials regarding the seriousness of Radwan‘s misconduct and the need for additional punishment beyond her suspension from the NCAA tournament and the AAC‘s letter of reprimand; and (3) alleged failures by UConn to properly apply its own internal disciplinary procedures to Radwan‘s misconduct. We conclude that this evidence was sufficient to satisfy Radwan‘s prima facie burden and ultimately to preclude summary judgment on the Title IX claim, notwithstanding UConn‘s non-discriminatory justification for the termination of her scholarship.
To be sure, UConn contends that the male student-athlete comparators at UConn cited by Radwan were not similarly situated to her, and also disputes her
a. Evidence of Disparate Treatment of UConn Male Student-Athletes
Radwan points to evidence in the record of male student-athletes at UConn who she contends were subject to the same or similar standards as she was, engaged in similar or more serious misconduct, and who faced lesser or no discipline from UConn.
One incident involved a male football player at UConn on a full athletic scholarship, Andrew Adams, who kicked a dead ball into the stands during a game in Utah against Brigham Young University (“BYU“), incurring a fifteen-yard penalty against the team for his “unsportsmanlike conduct.” Joint App‘x at 625. Adams received no discipline from UConn for that misconduct.
Construing this evidence most favorably to Radwan, a reasonable juror could conclude that Adams was similarly situated to Radwan in all material
UConn provides several explanations as to why Radwan and Adams are not similarly situated. However, in this case, a jury needs to decide whether these distinctions are material and resolve any conflicting inferences that could be reasonably drawn from the differing facts. For instance, AD Manuel stated that
AD Manuel further testified that Radwan‘s gesture was more serious than Adams kicking a ball into the stands because AD Manuel had never seen a winning player make a gesture like Radwan‘s, and “it [brought] a negative image of herself and the team and the university.” Id. However, a jury could reasonably debate any assertion that the novelty of the alleged misconduct should necessarily
Moreover, Adams is not the only male student-athlete to whom Radwan points as receiving more favorable treatment for what she alleges is similar to or more serious misconduct than her own. For instance, shortly after UConn initiated disciplinary proceedings against Radwan, four male UConn basketball players—two of whom had full athletic scholarships—missed curfew during a tournament in Puerto Rico and were sent home to Connecticut early. The basketball coach and
In another instance, a male soccer player without an athletic scholarship was arrested for theft and received the most significant penalty of the examples identified in the record involving male student-athletes at UConn—namely, a warning and required participation in a “Living Your Values” workshop. Of the particular incidents contained in the record involving male student-athletes at UConn, no penalty for misconduct comes close to the severity of the one imposed upon Radwan. In fact, it is undisputed that, during AD Manuel‘s tenure at UConn from March 2012 to March 2016, no male student-athlete was ever permanently removed from his team, or had his scholarship terminated, for a first instance of unsportsmanlike conduct.
Viewing the facts in the light most favorable to Radwan, a reasonable jury could conclude that one or more of these male student-athletes at UConn was sufficiently similar in all material respects to Radwan to raise an inference that, but for her gender, she would not have received the more severe punishment of termination of her scholarship.21
This “same decisionmaker” requirement has never existed in this Circuit. To the contrary, under
Other circuit courts have reached the same conclusion. See, e.g., Louzon v. Ford Motor Co., 718 F.3d 556, 563–64 (6th Cir. 2013) (“[W]e have never read the ‘same supervisor’ criteri[on] as an inflexible requirement. Rather, a court should make an independent determination as to the relevancy of a particular aspect of the plaintiff‘s employment status and that of the non-protected employee.” (internal quotation marks and citations omitted)); see also Cowgill v. First Data Techs., Inc., 41 F.4th 370, 382 (4th Cir. 2022) (“[P]laintiffs do not need to share the same supervisor in every case, and that comparison point is not a bar to relief in a case like this one, where the comparators are otherwise similar in all relevant respects.” (internal quotation marks omitted)); Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109, 1117–18 (D.C. Cir. 2016) (citing Louzon favorably and holding “there
The same analysis applies under Title IX. Any rigid “same decisionmaker” rule is unsupported by the text and purpose of Title IX and, as multiple amici point out, functionally would “render Title IX nugatory in virtually all disciplinary cases.” ACLU Br. at 10; see also Legal Momentum Br. at 23–24 (“[A] same-supervisor requirement would strip Title IX protections from the vast majority of student-athletes.“). Because most collegiate athletic teams are single-sex, and because most women‘s and men‘s athletic teams are led by different coaches, it is rare that a female and male student-athlete would ever be disciplined by the same individual at the coach‘s level. Thus, imposing such a requirement would unreasonably and artificially deprive a vast number of student-athletes of the ability to point to a similarly situated comparator.22 Cf. Seay v. Tenn. Valley Auth.,
Further, although the “same decisionmaker” factor may often be an important one, we note that its importance can vary greatly depending on the context. See Cohen, 101 F.3d at 177 (noting that “athletics . . . requires a different analysis [from employment] in order to determine the existence vel non of discrimination“). For example, to the extent that it may be difficult to draw an inference of discrimination from decisions by different decisionmakers in the employment context, where individuals frequently have varied job responsibilities and standards of performance, a shared decisionmaker may be a less relevant factor in the world of student athletics, which is dominated by single-sex teams with similar performance metrics and that are bound by the same standards of conduct.
Similarly, the “same decisionmaker” factor may be less important “where those who disciplined the plaintiff were well-aware of the discipline meted out to [her] comparator.” Redlin v. Grosse Pointe Pub. Sch. Sys., 921 F.3d 599, 611 (6th Cir. 2019) (internal quotation marks omitted). For example, here, Radwan points to evidence that AD Manuel (who was undisputedly the ultimate decisionmaker as to Radwan‘s discipline) was (1) at the game when Adams kicked the ball into the stands and spoke to him after the game, and (2) aware of the UConn male athletes breaking curfew in Puerto Rico and discussed the handling of that situation with the coach.
Therefore, we decline to impose a “same decisionmaker” requirement under Title IX and conclude that any variation in who made the disciplinary decisions at UConn, when comparing Radwan to male student-athletes, does not preclude a rational jury from finding that the male student-athletes are “similarly situated” to Radwan for Title IX purposes under the facts of this case.23
As for the first argument, although a comparator must be similarly situated to Radwan in material respects, as discussed above, they need not be identically situated. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11 (1976) (“[P]recise equivalence in culpability between employees is not the ultimate question.“). Instead, the “similarly situated” requirement can be met if the plaintiff and the comparator “were (1) ‘subject to the same performance evaluation and discipline standards’ and (2) ‘engaged in comparable conduct.‘” Ruiz, 609 F.3d at 493–94 (quoting Graham, 230 F.3d at 40). There are certainly all types of misconduct committed by student-athletes that, although not specifically involving an offensive gesture to a national television audience, could be comparable in their level of seriousness to Radwan‘s conduct. Juries are well equipped to compare and weigh these differing forms of misconduct under the common disciplinary standards that applied to all student-athletes at UConn. Therefore, we reject any contention that, to survive summary judgment, Radwan was required to demonstrate that a proposed comparator committed the exact same misconduct as she did or to present an identical factual analog to her situation.
As for UConn‘s second proposed distinction, regarding the fact that the AAC did not reprimand the male student-athletes but did reprimand Radwan, such a factual distinction would not also necessarily preclude a rational jury from concluding that they were similarly situated. There are many reasons why misconduct that is similar in nature to Radwan‘s (or even more serious) may not become the focus of an AAC investigation and/or sanction, such as certain types of misconduct by a player that took place off the field (as to which the AAC may not even be aware). In addition, Radwan counters that the fact that the AAC
Finally, UConn‘s related factual distinction, regarding the absence of any recommendation of additional discipline for the male student-athletes by their respective coaches (in contrast to Coach Tsantiris‘s recommendation as to Radwan), is merely a reframing of UConn‘s broader attempt to have this Court adopt a “same decisionmaker” requirement. As discussed above, we decline to do so and do not find this factual distinction to be dispositive in this case for summary judgment purposes.
b. UConn‘s Non-Discriminatory Reasons for Radwan‘s Sanction
Although UConn has articulated legitimate, non-discriminatory reasons for the disciplinary sanctions imposed on Radwan, Radwan argues that the record shows internal inconsistencies in the justifications for terminating her scholarship proffered by Coach Tsantiris and AD Manuel, from which a rational jury can infer
First, regarding the grounds for the termination of her scholarship, Radwan points to testimony from Coach Tsantiris that he had no other disciplinary problems with Radwan and that “[t]here was no other reason” why he recommended terminating her scholarship other than the gesture. Joint App‘x at 719. In contrast, AD Manuel repeatedly testified that “it was not only [the gesture], but there were issues and things that [Coach Tsantiris] was dealing with . her on the team that—before the incident that sort of compounded everything to him wanting to remove her from the team.” Id. at 685–86; see also id. at 695 (stating that “it was a combination of things that built up” to Coach Tsantiris‘s recommendation); id. at 706 (“[I]t was more than just her [gesture] that was presented to me in terms of . . . why it was handled more than a removal of her scholarship.“).
In addition, Radwan contends that UConn‘s failure to follow proper internal disciplinary procedures for the mid-year termination of her scholarship, and its accompanying efforts to frustrate her ability to bring an appeal, support a rational
UConn counters that none of the purported inconsistencies or alleged procedural issues (which UConn disputes) undermine its determination that Radwan engaged in serious misconduct, nor do they demonstrate that any of the reasons offered for her scholarship termination—including that her conduct required UConn to issue a formal apology and that she was the only UConn student to ever receive a reprimand from the AAC—was pretextual. However, as with the comparator evidence, these fact-specific issues cannot be resolved on
In sum, we conclude that, when the evidence in the record is taken as a whole and is construed most favorably to Radwan, a rational jury could find that, but for her gender, Radwan‘s alleged misconduct would not have caused UConn to terminate her scholarship. Accordingly, we vacate the grant of summary judgment on Radwan‘s Title IX claim and remand for proceedings consistent with the above.
III. CONCLUSION
We AFFIRM the district court‘s grant of summary judgment as to Radwan‘s procedural due process and First Amendment claims and VACATE the district
Notes
Radwan notes that there is evidence in the record that she was disciplined because Coach Tsantiris and AD Manuel found her gesture embarrassing. However, that is an oversimplification of the explanation by the decisionmakers for the disciplinary sanction. For example, AD Manuel explained that Radwan‘s gesture was not just “embarrassing” and “unnecessary,” but also “unsportsmanlike“:
That [gesture] is disrespectful to the competition that occurred. I didn‘t get into her mind and her rationale. But it is unsportsmanlike in the sense that it‘s disrespectful to the competition that you just engaged in[,] to yourself[,] and to the other team that participated with it. But at the time, I didn‘t, you know, get into that sort of sense of unsportsmanlike because to me it was just more of a reflection of her, her team, this university. But in the general sense of how I see unsportsmanlike behavior, yeah, that is.
Joint App‘x at 384. Similarly, Coach Tsantiris testified that Radwan‘s gesture was “devastating” because it brought the focus on herself and her inappropriate behavior, rather than the team‘s victory and its successful season. Id. at 366; see also id. (“No other player in my then 34 years as UConn head coach had behaved this way. I felt that plaintiff‘s behavior was a blow to the team, the program and UConn.“).
The policies weighing in favor of considering the merits of the “property interest” issue were absent from Radwan‘s First Amendment claim or the adequacy of the particular procedures utilized by UConn in connection with Radwan‘s due process claim. Both of those issues would require an expenditure of substantial judicial resources to address and, in contrast to the “property interest” question, are extremely fact-specific determinations that would be of limited value to public officials and future litigants in First Amendment or procedural due process cases involving universities. See Evans v. Skolnik, 997 F.3d 1060, 1065 (9th Cir. 2021) (noting that, although addressing the merits “‘is intended to further the development of constitutional precedent, opinions following that procedure often fail to make a meaningful contribution to such development,’ particularly where the constitutional question is ‘so factbound that the decision provides little guidance for future cases.‘” (quoting Pearson, 555 U.S. at 237)); see also Coollick v. Hughes, 699 F.3d 211, 219-20 (2d Cir. 2012) (emphasizing that we “have discretion to decide which of the two prongs of qualified-immunity analysis to tackle first” and noting that “[d]eciding a case under prong two saves scarce judicial resources by avoiding unnecessary decisions” and “may also be preferable” when “our deciding the case under prong one could create a risk of bad decisionmaking” (internal quotation marks omitted)).