Dean v. Warren

• Citation: 12 F.4th 1248
• Decision Date: 02 September 2021
• Docket Number: No. 19-14674,19-14674
• Parties: Tommia DEAN, Plaintiff - Appellant, v. Neil WARREN, Defendant - Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

12 F.4th 1248

Tommia DEAN, Plaintiff - Appellant,

v.Neil WARREN, Defendant - Appellee.

No. 19-14674

United States Court of Appeals, Eleventh Circuit.

September 2, 2021

Bruce P. Brown, Bruce P. Brown Law, Atlanta, GA, Randolph A. Mayer, Attorney, Mayer & Harper, LLP, Atlanta, GA, for Plaintiff-Appellant.

Lauren S. Bruce, Cobb County Attorney's Office, Marietta, GA, Deborah L. Dance, Jarrard & Davis, LLP, Cumming, GA, Hugh William Rowling, Jr., Cobb County Attorney's Office, Marietta, GA, for Defendant-Appellee.

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and ED CARNES, Circuit Judges.

JILL PRYOR, Circuit Judge:^*

Joining a national movement intended to curb police brutality against African Americans and advance the cause of racial justice, Tommia Dean, a cheerleader at one of Georgia's public universities, and a handful of her teammates kneeled during the pre-game national anthem at one of the university's football games. What followed, according to Dean, was a public and private conspiracy—orchestrated by the university's leadership, the county sheriff, and a Georgia legislator—to deprive Dean and her teammates of their First Amendment rights. Seeking redress, Dean filed this action alleging violations of 42 U.S.C. § 1983 and § 1985(3).

The only issue on appeal is whether the district court erred by dismissing Dean's § 1985(3) claim against the sheriff, Neil Warren. The district court concluded that Dean failed to state a § 1985(3) claim because she failed to plausibly allege that Warren possessed the requisite class-based animus. After careful review, and with the benefit of oral argument, we agree with the district court that Dean failed to surmount § 1985(3) ’s class-based animus bar under the standard established by Supreme Court precedent. We therefore affirm the district court's order dismissing Dean's claim against Warren.

I. BACKGROUND

A. Factual Background¹

During the National Football League's 2016 season, Colin Kaepernick, a San Francisco 49ers quarterback, refused to stand for the national anthem. Instead, he kneeled in protest of police brutality against African Americans.² His kneeling ignited a national controversy concerning police brutality, the appropriateness of kneeling in protest during presentations of the national anthem, and racial injustice in America.

Kaepernick's kneeling encouraged other athletes to kneel, including a group of African American cheerleaders at Kennesaw State University, a public university in Georgia. Dean, the plaintiff, was one of those cheerleaders. After she and her teammates kneeled in protest for the first time in September 2017, several public and private individuals conspired to prevent Dean and her teammates from kneeling during the national anthem as a form of protest.

When the President of KSU, Samuel Olens, learned of the kneeling, he emailed the university's Vice President of Student Affairs to express concern about the protest, directing the Vice President to schedule a meeting with the cheerleaders the following week. The day after the cheerleaders first kneeled, Earl Ehrhart, then a Georgia state legislator and chair of the state House committee with control over the budget for Georgia's public universities, called Scott Whitlock, KSU's Senior Assistant Athletic Director, instructing him that the cheerleaders should be prohibited from kneeling during the national anthem.³

The next day, the presidents of the University System of Georgia gathered to discuss the kneeling incident. During that gathering, the University System's staff relayed to the presidents, including Olens, legal advice from the office of Georgia's Attorney General. That advice instructed the presidents that the First Amendment protected the students’ right to kneel in protest during the national anthem, so long as the expression was not disruptive. The presidents were also informed that no action should be taken on the protests without first discussing it with the University System.

That same day, Ehrhart called Olens to tell him that cheerleaders must not be permitted to kneel during the national anthem and those who continued to kneel should be removed from the team. During this call, or by a subsequent communication, Olens assured Ehrhart that the cheerleaders would not kneel again. Ehrhart was not the only individual to relay the message that the kneeling must cease to Olens that day. Neil Warren, the county sheriff, did too.

Two days later, Whitlock and Matt Griffin, then-interim Athletic Director at KSU, announced to an assembled group of KSU officials that the cheerleaders would not be allowed on the field during the anthem but would instead remain in the stadium's tunnel. Assistant Athletic Director Michael DeGeorge questioned the timing of the policy change that came days after the protest. That same day, Griffin met with Olens to obtain permission to implement the "tunnel rule": the new policy requiring cheerleaders to remain in the tunnel during the national anthem. Olens gave Griffin permission to implement the tunnel rule to appease Ehrhart and Warren.

Two days later, Warren again called Olens about the protests. Olens assured Warren that the protests would not happen again, informing him that the newly adopted tunnel rule prevented the cheerleaders from taking the field during the national anthem. That day, the Marietta Daily Journal published an article stating, "Ehrhart said Attorney General Chris Carr and Olens have been helpful in the situation and he [Ehrhart] believes the behavior [the anthem kneeling] will not occur at KSU again." Doc. 1 ¶ 26.⁴

The next day, one week after the first kneeling protest, the tunnel rule took effect. For the first time in KSU's history, the cheerleaders were not on the field during the national anthem. Instead, they were held in the tunnel by KSU Athletic Department representatives until the anthem concluded.

Warren and Ehrhart celebrated the development, taking credit for the tunnel rule. In a text message, Warren boasted, "[n]ot letting the cheerleaders come out on the field until after national anthem [sic] was one of the recommendations that Earl [Ehrhart] and I gave him [Olens]!" Id. ¶ 29. In a text to Warren, Ehrhart commented, "He [Olens] had to be dragged there but with you and I pushing he had no choice. Thanks for you[r] patriotism my friend." Id.

Two days after the tunnel rule was implemented, an opinion writer for the Marietta Daily Journal warned the cheerleaders that they had better not insist on kneeling during the national anthem. He informed Dean and her teammates that "the sheriff, any sheriff, is about the last person you want to mess with in any county" and warned them that their "antics" had "riled [up] ... something fierce [in Warren]." Id. ¶ 34. He explained, "Again these guys [Warren and Ehrhart] are very upset with you. Don't say I didn't warn you." Id.

Some KSU students were dismayed by the administration's apparent attempt to prevent the cheerleaders from kneeling during the anthem. They protested in support of the cheerleaders. The Chancellor of the University System of Georgia directed the Board of Regents’ Office of Legal Affairs to conduct a review of the actions KSU took following the cheerleaders’ protest.⁵ While that review was ongoing, the cheerleaders were again held off the field in the tunnel during the national anthem, where four members, including Dean, again kneeled in protest.

Less than a month later, facing pressure from students, faculty, the press, and the Board of Regents, Olens wrote a public letter to the KSU community explaining that, at the next home game, the tunnel rule would be abolished and the cheerleaders would again be permitted to take the field before presentation of the national anthem. In the letter, Olens recognized that the central message of the protest concerned political issues of national concern.

The Regents’ report was issued days later. It found that Olens was aware of the tunnel rule's implementation and did not prevent it. It also found that Olens acted contrary to the University System Office's instruction to provide it with notice of any policy changes made in response to the cheerleaders’ kneeling. Finally, it questioned a justification KSU officials gave for the tunnel rule, that it was designed to eliminate a two-minute gap in the pregame music, implying that the justification was likely pretextual given the timing of the rule's implementation and the fact that the two-minute gap was remedied by other means.

B. Procedural History

In a single action, Dean sued two groups of defendants. In Count 1, she alleged that Olens, Whitlock, and Griffin deprived her of her expressive speech rights under the First and Fourteenth Amendments. See 42 U.S.C. § 1983. Count 1 is not relevant to this appeal.⁶

In Count 2, Dean alleged that Ehrhart and Warren conspired to deprive her of her constitutional rights.⁷ See 42 U.S.C. § 1985(3). Dean alleged that Warren engaged in the conspiracy "because of her race," that is, because Dean and her protesting teammates are African American. Id. ¶ 50. She also alleged that Warren engaged in the conspiracy "because ... she was protesting police brutality against African Americans." Id.

Warren moved to dismiss for failure to state a claim. In the motion, Warren argued, among other things, that Dean's claim failed as a matter of law because Dean had not stated a plausible § 1985(3) claim that he had acted with a racial or otherwise class-based discriminatory motive.

The district court agreed. It explained that § 1985(3) "requires a showing of some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action." Doc. 36 at 9 (internal quotation marks omitted). Dean's allegations, the court concluded, failed to make this showing. In assessing whether Dean could state a claim under § 1985(3), the district court conceptualized three theories by which she might survive the class-based animus requirement.

First, Dean...