Second Circuit Says University Officials Get QI for Revoking Scholarship

Steven D. Schwinn, University of Illinois Chicago School of Law

The Second Circuit ruled this week that University of Connecticut officials enjoyed qualified immunity from a UConn soccer player's free-speech and due process claims after the officials terminated the player's scholarship for raising her middle finger on camera after a nationally broadcast game. At the same time, the court ruled that there was sufficient evidence to allow the player's Title IX claim to move forward.

The case, Radwan v. Manuel, arose when Noriana Radwan, a UConn soccer player, raised her middle finger on camera after a nationally televised game. UConn officials suspended her from further tournament play and later revoked her one-year scholarship. Radwan sued, arguing that the move violated the First Amendment, due process, and Title IX.

The Second Circuit ruled that UConn officials enjoyed qualified immunity against the free-speech claim, because "the right of a student-athlete at a university, while in public and on the playing field, to make a vulgar or offensive comment or gesture without suffering disciplinary consequences" wasn't clearly established. The court explained:

Although we agree that the Supreme Court has suggested that its analyses in addressing the First Amendment in the public elementary and high school settings (including Hazelwood and Fraser) may not apply equally to the university setting, neither the Supreme Court nor any circuit court has yet provided an alternative legal standard or framework to help university administrators discern the precise constitutional line in such circumstances, especially when the student engages in speech while wearing the university's uniform as part of an extracurricular activity.

As to the due process claim, the court held that a fixed-term athletic scholarship terminable only for cause gave rise to a constitutionally protected property right. But it said that this right wasn't clearly established when officials revoked Radwan's scholarship.

The court ruled for Radwan on her Title IX claim, however, saying that "taken as a whole and construed most favorably to Radwan as the non-moving party, [the evidence] is sufficient to create genuine issues of material fact as to whether Radwan received a more serious disciplinary sanction at UConn because of her gender." That's not a final ruling on the Title IX claim; it only allows the claim to move forward.