Alleged Retaliation by High School Coach Against Athlete Leads to First Amendment Claim

"Disputes between a high school coach and an athlete's parent are common, but most of those disputes do not lead to multiple internal investigations, a police report, and a federal lawsuit. This one did."

From Judge James Peterson (W.D. Wis.) Aug. 14 in Whalen v. Selk, which allows the claim to go forward:

Jake Whalen played basketball for Waunakee High School from his freshman through junior year. During much of that time, Jake's father, Mark Whalen, was complaining to school officials about head coach Dana MacKenzie and assistant coach Tyler Selk. Mark says that he was primarily concerned about potential financial misconduct by the coaches related to a private basketball camp they ran. Selk says that Mark's real beef was a long-simmering disagreement about Jake's playing time.

Over the course of more than a year, Mark's complaints escalated, culminating in both school district and police investigations. Neither the police nor the school district found any misconduct, but at the end of Jake's junior year, the school district chose not to renew MacKenzie's contract—without giving a reason—and Selk became the head coach. The following year, Selk cut Jake from the varsity team.

Selk admits that Jake was a better player than other students who made the team, but Selk says he cut Jake anyway because of a concern that Jake's perception of his ability was unrealistic, and he would not have been happy with his place on the team. Jake and Mark contend that Selk was angry with Mark and Jake because of Mark's accusations and because Jake confronted Selk in front of the principal about wanting to be treated fairly….

In 2022, during the summer before Jake's junior year, Mark and other parents spoke to principal Brian Borowski and other Waunakee school district officials about multiple "concerns" they had with Selk and Dana MacKenzie, who was then the head coach for the boys' varsity basketball team and a close friend of Selk. The details of Mark's statements are hazy, but the parties appear to agree that Mark raised three allegations that implicated Selk:

1. MacKenzie and Selk ran private basketball camps for teens during the summer under the name Waunakee Basketball. Every year, Waunakee Hoops, a nonprofit booster club for the high school's basketball program, sent out an email promoting the camps and explaining how to sign up and pay for them, even though Waunakee Hoops did not run the camps and did not receive any money from them. Mark and some other parents believed that MacKenzie and Selk were misleading parents into believing that fees for the camps were going to Waunakee Hoops when those fees were actually going to MacKenzie and Selk.
2. MacKenzie and Selk did not have to pay the school district for their use of the high school basketball court for the camps, even though the camps were not affiliated with the school district and MacKenzie and Selk were charging students for the camps.
3. Mark had heard from a friend that MacKenzie and Selk were gambling on Waunakee sports.

Mark repeated similar allegations in other meetings and communications with school officials throughout the 2022–23 school year, including a closed session with the school board where MacKenzie was present….

In August 2023, Mark and an attorney went to the police with allegations about MacKenzie and Selk. Neither party identifies specifically what Mark said to the police. A police report summarized the statements as "concerns with some Waunakee High School Basketball coaches profiting from a basketball camp they hosted via a non-profit booster club that supports Waunakee Boys Basketball." Another portion of the report stated that Mark "had some concerns regarding activities of the basketball coaches that [he] believed were possibly illegal." No charges were filed….

At some point before the 2023–24 season began, Selk led a meeting with coaches, students, and parents, including Mark. During the meeting, Selk showed a series of PowerPoint slides that covered various topics, including the role of Waunakee Hoops, communications with parents, and expectations of players.

One of the slides was titled "Waunakee Basketball – Toxins." Bullet points included "Complaining, deflective & descriptive behaviors of who's done things incorrectly" and "Defame the ability of players and leaders within our program." When asked during his deposition whether the slide was about Mark, Selk said "not directly," but when a follow-up question asked whether Selk considered Mark to be "among a group of people who were toxins in the program," he said, "Absolutely." When counsel asked whether Selk thought Mark was a toxin for accusing Selk of "taking money," "gambling on high school games," and "using [Selk's] spot as a coach to get free gym time for personal gain," Selk answered "yes," and "[t]hose accusations are toxic" …

The Whalens sued Selk "contending that Selk retaliated against them for exercising their right to free speech under the First Amendment," and the court concluded that the case should go to a jury, so that the jurors can resolve the "material factual disputes about both the content of Mark's speech and the reasons for Selk's decision":

A reasonable jury could find that Mark and Jake's protected speech were reasons that Selk cut Jake from the varsity team and that Selk would have kept Jake on the team if Mark and Jake had not spoken out. As for Mark's speech, Selk admits that he knew that Mark was making accusations against him. And there is evidence that Selk was angry about those accusations and wanted to retaliate.

For example, Mark testified that Selk talked about "getting rid of" or "weeding out" what he called "toxic parents" in the context of a meeting in which he expressed disagreement with the way MacKenzie had been treated. Several members of the varsity team similarly testified that Selk said during one of the first practices after cutting Jake that he had to "get rid of the toxins" for the good of the team. Selk later said about Mark, "[H]e thinks he can say absolutely whatever he wants and it won't be held against him."

Selk denies making the first two statements, and he says that the third statement had nothing to do with retaliating against Mark. But, again, the court must construe the facts in the Whalens' favor and accept their admissible evidence as true. "[W]hether ambiguous statements are discriminatory, retaliatory, or benign is an appropriate question for a jury." If the jury were to believe the testimony adduced by the Whalens, one reasonable inference is that Selk believed that Mark was a "toxin" whose unfair accusations got Selk's friend fired and were making Selk's life more difficult, so Selk wanted Jake off the team to punish Mark and teach him that he cannot say "whatever he wants."

The suspicious statements alone are enough to create a genuine issue of material fact precluding summary judgment, but there are two other types of circumstantial evidence that Selk was treating Jake differently because of Mark's speech. First, there is evidence that Selk singled out Jake for adverse treatment without explanation. Jake says that Selk gave him the cold shoulder during the summer season after MacKenzie was terminated. And during varsity tryouts, Jake says that he was the only senior required to practice with the freshman.

One reasonable explanation for this treatment is that Selk was angry with Jake for his father's speech. Selk denies treating Jake differently from anyone else, but, again, the court must accept Jake's version of events at the summary judgment stage.

Second, Selk and the other coaches admit that Jake was better than other players who made the team. Nineteen students made the varsity team, and the coaches ranked Selk's abilities as high as tenth. Only one other senior did not make the team, and that was because he did not show up for practice. Jake did make the varsity team his junior year, and Selk does not say that Jake's performance deteriorated between junior and senior year.

Selk's response to this is that his decision was not so much about Jake's basketball skills, but more about his attitude. Specifically, Selk says that Jake's perception of his skills was unrealistic, and Selk believed that Jake would not be happy with anything less than a spot on the rotation.

A reasonable jury would not have to credit Selk's explanation, for two reasons. First, as already discussed, Mark has adduced evidence that Selk was motivated by Mark's speech when deciding whether to cut Jake from the team. Determining which reason was decisive requires weighing the evidence, something that is reserved for the factfinder.

Second, in arguing that it was reasonable to believe that Jake would not accept an auxiliary role on the team, Selk relies primarily on one statement that that Jake made during a meeting with the principal. But Jake denies making that statement, so the court cannot consider it for the purpose of deciding Selk's summary judgment motion. In any event, the statement was that Jake believed he was good enough to be part of the rotation, and a reasonable jury could find that such a statement would not have influenced Selk, for multiple reasons:

• Selk and the other coaches admitted that it was common for students to want more playing time, and they would not hold it against a student for expressing dissatisfaction with his place on the team.
• Selk and the other coaches admitted that Jake was a good teammate who did not complain to his teammates. Despite Jake losing playing time during his junior year, Selk does not allege that Jake displayed a poor attitude with other players or had an adverse effect on team morale.
• Selk and the coaches asked at least three other players whether they could accept being on the team if they were not in the rotation. No one had that conversation with Jake.
• When Selk explained to Jake why he had not been selected for the varsity team, Selk stated his concern that Jake would not be an "all in" player. That was the same type of language Mark says that Selk used during the meeting in which he talked about getting rid of "toxic parents."

One reasonable inference from this evidence is that Selk was less concerned than he claims that Jake's attitude would prevent him from being a productive member of the team, and that the concern was more of a smokescreen for Selk's desire to get back at Mark than a genuine belief….

The bottom line is that the evidence is disputed regarding why Selk cut Jake from the varsity team, and there are reasonable inferences supporting a finding that Selk was motivated by Mark's speech [and perhaps Jake's speech] more than concerns about Jake's attitude….

Paul A. Kinne and Robert J. Gingras (Gingras, Thomsen & Wachs, LLP) represent plaintiffs.