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Free Speech

Former Oklahoma U Volleyball Player's First Amendment Claim Can Go Forward

Kylee McLaughlin is claiming coaches engaged in "pressure and retaliation ... due to her political beliefs and her reactions to claims of racism," because of the coaches' "political or social justice beliefs, including support for critical race theory, opposition to President Trump, and a belief that white persons like plaintiff are privileged and racist."


From McLaughlin v. Bd. of Regents, decided yesterday by Judge Joe Heaton (W.D. Okla.):

According to the amended complaint, plaintiff [Kylee McLaughlin] was a premier volleyball player and scholarship student athlete who played on the University [of Oklahoma]'s intercollegiate women's volleyball team. She also describes herself as a practicing Christian and conservative in her political beliefs. Defendant Lindsey Gray-Walton is the head women's basketball coach. Defendant Kyle Walton is Gray-Walton's husband and an assistant women's volleyball coach….

The amended complaint broadly alleges a pattern of pressure and retaliation against plaintiff due to her political beliefs and her reactions to claims of racism by others. She alleges that during the period following the killing of George Floyd and of the COVID-19 pandemic, the focus of the coaches of the O.U. volleyball team shifted from volleyball to required discussions about "white privilege and social justice," including watching documentaries about racism and slavery. The complaint alleges that, although her mandated comments about a required documentary were not racist, another team member suggested via a social media post that plaintiff's comments were those of a racist.

The complaint alleges that, on June 12, 2020, plaintiff posted emojis (a laughing clown and a skull and crossbones) on an ESPN website to indicate her skepticism as to whether "The Eyes of Texas," a song of some popularity in the State of Texas, was a racist song. According to the complaint, the posting triggered an immediate contact from Gray-Walton that same day, adverse comments from some of her teammates, and, on the following day, instructions from Gray-Walton for plaintiff to take down her posts and an extended discussion about "white allergies and white privilege" and plaintiff's need to look into herself to identify those things.

The complaint further alleges that, a day or so after the ESPN posting, Gray-Walton and Kyle Walton, along with others, conducted a team meeting directed at plaintiff's comments about the documentary and "The Eyes of Texas." The meeting allegedly included a representative of "the Psychological Research Organization" and O.U.'s Office of "Diversity, Equity and Inclusion." According to the complaint, plaintiff was called a racist and a homophobe during the meeting (apparently by other teammates). Allegedly, defendant Gray-Walton said something to the effect that "we can't save you when you get into the real world" and defendant Kyle Walton said, "Not sure I can coach you anymore."

The complaint alleges plaintiff attempted to apologize but the group rejected the apology because they viewed it as offered with insufficient feeling. Allegedly, due to pressure from Gray-Walton, plaintiff apologized to the coaches and players at the University of Texas the next day by phone and they were more accepting.

The complaint indicates the incident(s) and the accusations that plaintiff was a racist and a homophobe resulted in more meetings, eventually resulting in a zoom meeting (apparently with Gray-Walton and Toby Baldwin, identified as "O.U.'s compliance officer") in which plaintiff was told she "did not fit the culture of the program" and could not be trusted based on her media posts and comments reported by her teammates. She was allegedly presented with an "ultimatum" as to her senior season and required to pick between three options: (1) keep her scholarship, redshirt, practice only with her coach but not the team, and undergo more diversity, equity, and inclusion training, (2) keep her scholarship but only as a student (apparently meaning off the team), or (3) transfer to some other school.

The complaint alleges plaintiff initially elected the first option but also attempted to transfer later. She indicates she, although a senior, was required to participate in the freshman athletic orientation over two days. She alleges she was later required to be in an individual "Growth Plan," involving training about "homosexuality, unlearning 'classism', 'ableism', 'trans and homosexual negativities', and 'sexism.'" … The complaint generally alleges defendants' actions were the result of their strongly held political or social justice beliefs, including support for critical race theory, opposition to President Trump, and a belief that white persons like plaintiff are privileged and racist…. The complaint alleges she was ultimately forced to transfer to another school because of the defendants' actions….

The court concluded that McLaughlin had stated a First Amendment claim; it cited the high school speech precedents (Tinker, Fraser, Hazelwood, and Mahanoy)—I think it incorrectly, since I think they don't generally apply to college students—but added that the "substantial public interest in protecting a student's right to express unpopular opinions" is "[p]resumably … even more substantial in a university context than in a high school such as Mahanoy involved." And it concluded (I think correctly) that, even applying the high school cases, McLaughlin could prevail, if the facts were as she described them to be:

[T]he complaint alleges plaintiff's participation in constitutionally protected speech. If a student's posting, via social media, of a direct and vulgar attack on her school and its coaches is protected speech (i.e., Mahanoy), it is difficult to see how posting a somewhat ambiguous emoji on a third-party website, apparently expressing skepticism that "The Eyes of Texas" is a racist song, could be otherwise.

Further, plaintiff's alleged on-campus statements of her political views, although in the context of a school-sponsored activity, were also protected. There is nothing in the complaint to suggest that plaintiff presented her opinions in a disruptive manner or that they were vulgar or indecent. {Defendants' responses suggest plaintiff said other things that were objectionable beyond those described in the complaint. That may well be, but the inquiry for present purposes is limited to the allegations of the complaint.} Further, it is less than obvious that the coach of the volleyball team has a legitimate pedagogical interest in policing the political opinions of the team's members….  "Of course, players do not completely waive their rights when they join a team; a coach could not dismiss a player simply because the player had religious or political views that were unpopular with his teammates." Lowery v. Euverard (6th Cir 2008)….

[T]he complaint [also] alleges facts sufficient to [show] {adverse action sufficiently severe as to "chill a person of ordinary firmness" from engaging in the speech}. It alleges that defendant Gray-Walton ordered her to take down the post about the "Eyes of Texas," pressured her to apologize to UT personnel, initiated team meetings focused on plaintiff's opinions as expressed about the required film viewing, involved the University's diversity and inclusion office in the discussion (which apparently resulted in remedial attitude-adjustment sessions for plaintiff but not others), restricted plaintiff's opportunity to practice with the team, ignored inquiries from plaintiff and her parents, and ultimately forced her to leave the program. The allegations as to Gray-Walton easily meet the "chill" standard.

The question is closer as to defendant Kyle Walton, who appears to have had less involvement in the various challenged actions. However, his alleged comment to plaintiff during a team meeting — "Not sure I can coach you anymore" — is subject to multiple interpretations. In the context of a motion to dismiss, the court views the alleged facts in the light most favorable to the non-moving party and the referenced comment could be viewed as suggesting an intent to remove plaintiff from the team. So viewed, it states the necessary threat of adverse action. {Defendants suggest that plaintiff did not have a constitutional right to participate in an extra-curricular activity like being on the volleyball team. However, that fact is not determinative in the First Amendment retaliation context.} …

The court also concluded that the coaches weren't entitled to qualified immunity:

[W]hen the qualified immunity defense is asserted, a plaintiff must show not only that her constitutional rights have been violated but that the pertinent constitutional right was "clearly established" so as to put a defendant on notice that his or her conduct was proscribed. Ordinarily, "clearly established" means that there must be a prior Supreme Court or Tenth Circuit case on point, or that the clear weight of authority elsewhere points only in a single direction….

Here, the qualified immunity issue arises at the motion to dismiss stage and, as noted above, the factual allegations of the complaint are viewed in the light most favorable to plaintiff. The court draws all reasonable inferences from them in plaintiff's favor. Viewed in that light, she has alleged that substantial penalties were imposed on her simply for expressing, in a non-disruptive way, political opinions that the coaches and/or other team members disagreed with. The court concludes it was clearly established that such conduct would run afoul of constitutional prohibitions.

With respect to the off campus conduct on which plaintiff relies (i.e., the ESPN posting), the most instructive case is Seamons v. Snow (10th Cir. 2000). Seamons involved a high school football player who was kicked off the team for reporting to the authorities an assault on him by teammates in the locker room and refusing to apologize for the reporting. The Circuit reversed the district court's grant of qualified immunity to the coach. In finding that the pertinent law was clearly established, the court, referring to its earlier opinion in the same case, said "… extensive case law in 1993 supported the proposition that school authorities may not penalize students when that speech is non-disruptive, non-obscene, and not school-sponsored." Here, the complaint alleges nothing that could plausibly be viewed as disruptive, obscene, or otherwise objectionable.

With respect to the on-campus speech alleged by plaintiff (her comments after viewing the film, etc.), the court concludes the clearly established law precluded what the complaint alleges the defendants did — punishing plaintiff purely for her expression of political opinions they or others disagreed with. The complaint does not allege speech by plaintiff that was disruptive, lewd, or obscene. There is no suggestion that plaintiff's statements were inartfully expressed, poorly researched, or not thought through. It does not allege a basis for concluding her statements were "inflammatory or divisive." … [T]here is nothing in the alleged circumstances to take this case outside the long- established principle that a state actor cannot retaliate against someone just because they disagree with them…. The principle was sufficiently established and obvious that a university professor or coach should have known of it.

The court also allowed McLaughlin's intentional interference with contractual relations cases to go ahead against the coaches:

Defendants do not challenge that plaintiff's relationship with OU was at least partly contractual in nature. Rather, they suggest she did not have a property interest in being there and therefore no claim exists. The court is unpersuaded. The question for present purposes is not whether plaintiff had a property interest in attending OU or playing volleyball, such as might be pertinent in evaluating a Due Process claim. Rather, the claim is for interference with a contract, and the complaint sufficiently alleges interference with it. To the extent the argument focuses on plaintiff's scholarship, the complaint does not allege that her scholarship was revoked directly but it does allege that she was forced to leave the university as a result of the defendants' conduct, with a consequent impact on the scholarship….

And it also allowed the intentional infliction of emotional distress claim to proceed as well:

Here, plaintiff alleges that defendants intentionally and recklessly labeled her as, or portrayed her as, a racist and homophobe. The court concludes the alleged conduct is sufficiently serious, in light of the relationship of the parties, the current societal and political climate, and the fact it occurred in a university setting, to qualify as extreme and outrageous. The complaint also alleges that plaintiff suffered severe emotional distress, sleeplessness, anxiety, embarrassment, injury to her reputation, and humiliation, as a result. At the motion to dismiss stage, plaintiff has sufficiently alleged an intentional infliction of emotional distress claim….