Federal Circuit Court Addresses Student Athlete Misconduct Issues (Part 1)

The United States Court of Appeals for the Second Circuit has published a significant ruling addressing college student athletes’ First Amendment, procedural due process, and Title IX rights.

The case, Radwan v. Manuel[i], was brought by a female soccer player at the University of Connecticut after she lost her athletic scholarship for raising her middle finger to the camera during a nationally televised game in 2014. Following her departure from UConn, she filed a lawsuit alleging issues of freedom of expression, procedural due process, and Title IX violations for discriminatory punishment. These claims were dismissed by the District Court in the University’s favor through a Motion for Summary Judgment in 2020[ii]. However, on appeal, the Circuit Court altered the District Court’s ruling, creating new legal mandates that athletic directors, compliance administrators, and University counsel should consider when fine-tuning grievance procedures and handling college student athlete misconduct in the Second Circuit. 

The Facts

Following the team’s victory over the University of South Florida in a tournament, Noriana Radwan was celebrating with teammates when she raised her middle finger to a nearby camera operator. The camera was live streaming the game on ESPNU in a national broadcast. Following the incident, Radwan was told that she would be reprimanded for her actions. However, the discipline implemented was not the result of the University’s Student Conduct Office procedures, but rather the athletic department’s internal decision making. Radwan alleged that the athletics process offered no meaningful opportunity to be heard, or to appeal. Radwan alleged that when the Financial Aid office reached out to provide notice of her athletic scholarship being terminated due to her misconduct, she was given conflicting dates on which to appeal by through the Financial Aid office, causing her appeal to be dismissed due to untimeliness. Radwan ultimately transferred to a new school on partial athletic scholarship and initiated this lawsuit. Radwan brought state law claims, a Federal Title IX Claim, and federal constitutional freedom of expression and procedural due process challenges through 42 U.S.C. § 1983.  

Freedom of Expression in Higher Education: a Gray Area 

In addressing the First Amendment freedom of expression challenge, the Court balanced prior Supreme Court rulings on student First Amendment issues, while acknowledging the difficult gray area this specific legal claim presented.

The Plaintiff argued that raising her middle finger as a matter of expression is a protected activity, and therefore the University as a public entity violated her First Amendment rights when it disciplined her for doing so. Under First Amendment precedent, the plaintiff is not wrong that “flicking someone off” is a protected activity and the right to do so is clearly established.[iii] However, the context of the incident being in higher education is one reason this decision may prove so important in the elucidation of college student athletes’ rights.

As a starting point, the Supreme Court has recognized that K-12 schools can regulate students’ freedom of expression under certain circumstances.[iv] One specific classification of student expression on K-12 campuses that can be regulated is “offensive and lewd speech unrelated to any political viewpoint, even if it does not cause a substantial disruption at the school”.[v]

However, the difficulty in determining the First Amendment protection in this case arises from the fact that the majority of student freedom of speech / expression cases are specific to K-12 education, not higher education. This change of context, requiring a potential shifting of the legal analysis, has been highlighted by various rulings.

The Supreme Court has stated that K-12 student free speech is a very different context than student expression within higher education[vi] and has left open the question of whether the K-12 expression cases apply on college campuses[vii]. Speaking on this issue, other Circuit Courts have stated, “K-12 rulings on student free speech cannot be taken as gospel in cases involving public universities.”[viii]

Following this precedent, the Second Circuit in Radwan found that the student free speech cases from the K-12 education are not directly in play in the higher education arena. Because of this gray area of undefined rules surrounding freedom of speech in higher education, the Court ruled that there is no clearly established precedent regarding regulation of college student athletes’ First Amendment rights when they are representing the institution in a game. Because there was no bright line rule on this specific question, the Court affirmed the grant of summary judgment to the University and granted qualified immunity to the University and the administrators involved. Thus, the Court declined to create a broad rule prohibiting the regulation of lewd and vulgar expression by University athletes, which gives institutions of higher education in the Second Circuit discretion on when, and how, to handle similar misconduct to ensure their athletes are “engaged in good sportsmanship while representing the school in athletic competitions.”[ix]

Compliance administrators at public universities should consider reviewing their athletic handbooks and have conversations with counsel about the scope of a conduct policy regulating athlete expression while representing the school. There should be a clearly established grievance procedure for handling athlete misconduct, but what process is due?

Next week’s release of this series will explore the 2nd Circuit’s ruling on athletic scholarships being constitutionally protected property interests, how that may affect University grievance procedures, and avenues towards compliance that should be considered when designing grievance procedures.

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[i] Release date of 11/30/2022. Decision is available for download directly from the Court’s website at the following address: https://www.ca2.uscourts.gov/decisions.html
[ii] Radwan v. Univ. of Conn. Bd. Of Trs., 465 F. Supp. 3d 75, 114 (D. Conn. 2020).
[iii] Swartz v. Insogna, 704 F.3d 105, 111 (2d Cir. 2013)
[iv] Tinker v. Des Moines Independent Community School District, 393 U.S. 260 (1998); Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986).
[v] Fraser at 685.
[vi] Board of Regents of University of Wisconsin System v. Southworth, 529 U.S. 217, 228 (2000).
[vii] Hazelwood School District v. Kuhlemeier, 484 U.S. 260, 271 (1998).
[viii] McCauley v. University of the V.I., 618 F.3d 232, 247 (3d Cir. 2010).  
[ix] Radwan at 45-46.