Cheerleaders who kneeled during the national anthem lose free speech lawsuit

In protest of police brutality against African Americans, quarterback Colin Kaepernick decided to kneel during the pregame national anthem.  Kaepernick’s kneeling encouraged other athletes around the country to kneel as well.  A year later a group of African American cheerleaders at Kennesaw State University, a public university in Georgia, followed that trend by kneeling in protest during their pre-game national anthem.

In reaction to the cheerleaders’ kneeling, the president of KSU, Samuel Olens, decided to prohibit the cheerleaders from kneeling.  After conferring with Georgia state legislator Earl Ehrhart, the KSU Athletic Director, and the County Sheriff Neil Warren, Olens announced the “tunnel rule”.  The cheerleaders would not be allowed on the field during the anthem but would instead remain in the stadium’s tunnel.  Olens authorized the athletic director to announce the implementation of this new policy.  After the first game that the tunnel rule was enforced, the amount of pressure and protests from students, faculty, the press, and the Board of Regents, forced Olens to announce that the tunnel rule would be abolished, and the cheerleaders would again be permitted to take the field before presentation of the national anthem.

Tommia Dean, a cheerleader and other students filed a §1983 lawsuit alleging that Olens and the school’s athletic director violated the First and Fourteenth Amendments by depriving her of expressive speech rights under. That claim was settled and was not an issue in this appeal.

They also alleged that Ehrhart and Warren conspired to deprive her of her constitutional rights, in violation of 42 U.S.C. 1985(3), claiming that county sheriff Warren engaged in the racially motivated conspiracy because she and her protesting teammates are African American.  She also claimed Warren engaged in the conspiracy because she was protesting police brutality against African Americans.  This appeal only involved the district court’s dismissal of the claim against Warren.

The court of appeals explained that to prove a conspiracy against her by the sheriff to deprive her of equal protection, they would have to show some racial or perhaps otherwise class-based, invidiously discriminatory animus behind the defendant’s action taken in furtherance of the conspiracy.  The court of appeals agreed with the district court that Dean’s race-based theory cannot succeed because she failed to plead sufficient facts supporting it.

Dean failed to show that Warren discriminated against her because she is African American.   Warren’s conduct was likely motivated by the nature and the content of the kneeling cheerleader’s message.  Dean failed to allege that Warren undertook the conspiracy because Dean and her teammates are African American.  Dean failed to prove that there was a some racial or perhaps class-based invidiously discriminatory animus behand the defendant’s actions.

Dean also failed to meet the third possible theory, that Warren undertook the conspiracy to prevent Dean and her protesting teammates from exercising their First Amendment rights because Dean and her protesting teammates were members of a political class of protesters of police brutality against African Americans.  The court of appeals found this did not comprise of a distinctive and identifiable group or class.