FIRE and allies stand up for student-athlete rights in “friend of court” brief to Second Circuit

Moments after the University of Connecticut women’s soccer team won the American Athletic Conference tournament championship back in 2014, student-athlete Noriana Radwan celebrated the Huskies’ victory by exuberantly flashing her middle finger at the ESPNU television camera broadcasting the game. The gesture—delivered with a smile, and unnoticed by others on the field—lasted less than a second. But it changed Radwan’s life. 

Shockingly—and despite the fact that her gesture is entirely protected by the First Amendment—Radwan lost her scholarship without notice or an opportunity to be heard.

Radwan’s display of joy embarrassed her coach and athletic director. So they leveled the most serious punishment they could against her: Radwan’s athletic scholarship was revoked the next month for “serious misconduct.” For Radwan, the loss of her scholarship was devastating, just as her coach predicted it would be. Because Radwan couldn’t afford to continue at UConn without it, the scholarship’s termination served as a de facto expulsion, ending her studies and forcing her to leave campus. Shockingly—and despite the fact that her gesture is entirely protected by the First Amendment—Radwan lost her scholarship without notice or an opportunity to be heard. 

In 2016, Radwan filed a lawsuit against her coach, UConn’s athletic and financial aid directors, and the university’s Board of Trustees alleging that the revocation of her scholarship violated her rights to free expression and procedural due process. 

This past June, a federal district court granted the UConn defendants’ motion for summary judgment, ruling that the defendants were entitled to qualified immunity on Radwan’s First Amendment claim because they could have “reasonably believed they were justified in disciplining Ms. Radwan for her expressive conduct broadcast on national television for all to see.” In reaching his conclusion, Judge Victor A. Bolden relied on Supreme Court cases governing the expressive rights of students in the K-12 context, particularly Bethel School District No. 403 v. Fraser, in which the Court held that the First Amendment does not prohibit discipline for “vulgar and lewd” student speech. While recognizing that Fraser concerned grade school student speech, Judge Bolden nevertheless concluded that the gesture’s broadcast to a national audience “complicate[d] the matter.” 

As for Radwan’s due process claim, the court found simply that student-athletes like Radwan do not possess a protected property interest in their scholarships—and thus public universities like UConn need not provide them with any procedural protections prior to taking those scholarships away.  

The district court’s ruling effectively relegates student-athletes to second-class citizenship on campus. Speech that would be protected on campus may suddenly be grounds for punishment under subjective and vague policies banning “serious misconduct” that would never pass constitutional muster in a public university’s student handbook. And students may be effectively expelled without so much as notice and an opportunity to respond—the bare minimum of due process protections. 

To help Radwan and student-athletes nationwide fight back, FIRE, the Brechner Center for Freedom of Information, and the Student Press Law Center filed a “friend-of-the-court” brief last week with the U.S. Court of Appeals for the Second Circuit, which is now considering Radwan’s appeal of the district court’s ruling. 

In our brief, we argue that the district court’s grant of qualified immunity was in error, as the Supreme Court clearly established in cases like Papish v. Board of Curators of the University of Missouri that the First Amendment protects the expressive rights of public university students in the same way it does citizens off-campus: 

Qualified immunity does not apply in situations where there is a clear precedent putting the state actor on notice that he is acting unconstitutionally. The Papish case, in particular, is on all fours with what happened in this case, holding that a college student cannot be punished for using profanity because college students’ First Amendment rights are coextensive with those of the community at large. The district court erred in straining Fraser to apply to this case.

We also argued that the “serious misconduct” charge leveled against Radwan is impermissibly vague. As we wrote: 

The University’s prohibition of “serious misconduct” provides no way for a student-athlete to determine what conduct is proscribed. Indeed, it is not even clear that a reasonable person thinks “misconduct” subsumes speech at all. Radwan had no notice that flipping the bird would fall within the category of “serious misconduct.” The threat of the University’s vague policy is that state actors can selectively decide what constitutes “serious misconduct” and what does not (and, as pointed out in Appellant’s Brief at 51–52 there is ample evidence of worse non- expressive misbehavior by male athletes going unpunished). Vagueness creates a significant risk of both content-based and viewpoint discrimination. 

Finally, we argued that Radwan did possess a protected property interest in her athletic scholarship, given the terms of the agreement and Radwan’s total reliance on its benefits, and that UConn’s failure to provide Radwan with meaningful notice and a hearing therefore violated her right to due process. We wrote: 

This Court must make clear that student-athletes are not disposable. While athletic scholarships bestow a particular status and benefit, student-athletes like Radwan are students first. This case does not require this Court to determine precisely what process UConn owed Radwan; UConn failed to afford Radwan even the bare minimum of procedural protections. Radwan’s scholarship was contingent upon her adherence to university and National Collegiate Athletic Association (NCAA) rules—and those same rules limited UConn’s ability to revoke her scholarship without sufficient process. Fundamental fairness requires that public institutions provide student-athletes basic procedural protections prior to the termination of a scholarship.

FIRE is grateful to the Brechner Center and the Student Press Law Center for working with us in defense of student-athlete rights, and we’ll keep readers posted as to the Second Circuit’s ruling.

You can read the full brief below: