College athletes can’t be stripped of their scholarships for violating vague “misconduct” rules that penalize legally protected expression, free-speech groups told a federal appeals court in New York.

In a brief filed Tuesday, the Brechner Center for Freedom of Information joined the Student Press Law Center (SPLC) and the Foundation for Individual Rights in Education (FIRE) in supporting Noriana Radwan, who was kicked off the University of Connecticut soccer team for momentarily flashing her middle finger during a sideline celebration.

The brief, filed with the Second Circuit U.S. Court of Appeals, argues that the university violated due process by taking away Radwan’s scholarship — which forced her to leave UConn — without any hearing or appeal process, under an open-ended rule against “severe misconduct” that gave coaches total discretion to decide what is and is not punishable.

Radwan alleges that UConn’s soccer coach and athletic director violated her constitutional rights by disciplining her for flashing her middle finger to the ESPN sideline camera while celebrating a November 2014 victory. But in June 2020, a U.S. district judge threw out her claims.

The judge found that Radwan could not recover damages against the UConn athletics officials because of the doctrine of “qualified immunity,” which protects a government employee from liability for violating the Constitution if there was not “clearly established” legal precedent that the behavior was unlawful.

Frank LoMonte, University of Florida media law professor and director of the Brechner Center, said the case is significant because it gives the federal appeals court the opportunity to clarify that college students have a greater degree of First Amendment protection than students in K-12 school, where First Amendment freedoms are diminished.

“If students on college campuses—even, as in this case, outside of the classroom on non-academic time—are limited to the speech that would be considered proper for K-12 children at a school function, then universities will be free to punish core political speech without redress for the speaker,” says the brief, filed by FIRE attorneys Darpana M. Sheth and William Creeley.

The Brechner Center has published research focusing on the First Amendment rights of college athletes because journalists persistently complain that college athletic departments aggressively control athletes’ right to speak to the news media. The Radwan case represents an opportunity to reemphasize that college athletes do not forfeit all constitutional protection when they join a team, LoMonte said.

Posted: November 25, 2020
Category: Brechner News
Tagged as: amicus briefs, athlete rights, First Amendment, Second Circuit, University of Connecticut