Kesterson v. Kent State Univ.

• Decision Date: 23 July 2020
• Docket Number: No. 18-4200,18-4200
• Citation: 967 F.3d 519
• Parties: Lauren KESTERSON, Plaintiff-Appellant, v. KENT STATE UNIVERSITY; Karen Linder, individually; Eric Oakley, in his official capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

967 F.3d 519

Lauren KESTERSON, Plaintiff-Appellant,

v.KENT STATE UNIVERSITY; Karen Linder, individually; Eric Oakley, in his official capacity, Defendants-Appellees.

No. 18-4200

United States Court of Appeals, Sixth Circuit.

Argued: October 23, 2019

Decided and Filed: July 23, 2020

Rehearing En Banc Denied October 16, 2020

PER CURIAM.

Lauren Kesterson, a student athlete at Kent State University, told her coach, Karen Linder, that Linder's son had raped her. Linder never notified anyone at Kent State. The university learned about the assault two years later when Kesterson made a complaint to the school's Title IX office. An investigation of the complaint led to Linder's resignation. Kesterson sued Kent State, Linder, and another coach, Eric Oakley, for violating the free-speech-retaliation protections of the First (and Fourteenth) Amendments, the equal-protection guarantees of the Fourteenth Amendment, and Title IX. The district court granted summary judgment to the defendants. We reverse in part and affirm in part.

I.

Lauren Kesterson started college at Kent State University in August 2012. The university's softball coach, Karen Linder, recruited her to play on a scholarship for the school's Division I team. A few weeks after she arrived, Kesterson met Linder's son, Tucker, also a freshman at Kent State. The two became friends. But later that year, in December 2012, Tucker allegedly raped Kesterson in her dorm room. Kesterson told her family and a few close friends about the incident in September 2013.

At the conclusion of her sophomore year, May 2014, Kesterson met with Linder for an end-of-season interview. When Linder asked how she was doing, Kesterson told Linder that Tucker had raped her. The parties dispute who said what next. Kesterson says she told Linder she did not want to bring criminal charges, while Linder says Kesterson told her not to tell anyone about the assault. Kesterson also claims (and Linder denies) that Linder told her to "keep [this information] between the people who already know and not tell other people." R.156 at 49. All agree that Linder, a mandatory reporter under Kent State's Title IX policy, did not notify anyone, including the athletic director, any other administrator, or the Title IX office at Kent State, about Kesterson's claim.

Kesterson told several more Kent State employees over the next year: two assistant coaches, her team's academic counselor, and the executive director of Kent State's Women's Center. None of these employees, all mandatory reporters as well, notified Kent State's Title IX office.

In 2015, at the beginning of her senior year, Kesterson contacted the Title IX office herself. She met with Erin Barton, one of the school's deputy Title IX coordinators, and filed a formal complaint against Tucker and Linder. Barton started a confidential investigation. Two days later, Barton met with Linder, who acknowledged that she violated Kent State policy by not reporting Kesterson's claim. Two days after that meeting, Kent State's athletic director, Joe Nielsen, gave Linder the option to resign or be fired. Linder resigned. A week after Kesterson's report, Kent State confirmed that Tucker was no longer enrolled at the school.

In 2016, Kesterson sued Linder and Eric Oakley, Linder's interim replacement, for violating her constitutional rights, namely her free speech rights not to be retaliated against for reporting the alleged rape and her equal protection rights. She also sued Kent State for violating her rights under Title IX. The district court granted summary judgment to the defendants on all of Kesterson's claims. This appeal followed.

II.

We review the district court's summary judgment decision with fresh eyes. Maben v. Thelen , 887 F.3d 252, 258 (6th Cir. 2018). If a jury could reasonably find for either party, the case must go to a jury trial. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And in making that call, we give all reasonable inferences from the record to the non-movant, Kesterson. Id. at 255, 106 S.Ct. 2505.

Constitutional claims against Linder. Kesterson believes Linder violated her First Amendment right to speak freely and her Fourteenth Amendment right to equal protection of the law. Linder faces no liability unless she violated a constitutional right that is clearly established. Pearson v. Callahan , 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Only when "existing precedent" places the rule at issue "beyond debate" will we consider the law "clearly established." Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). That does not mean we need a case "directly on point." Id . A key consideration is notice. Unless a reasonable official, confronted with the same facts, would know that the challenged actions violate the law, qualified immunity bars liability. District of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 590, 199 L.Ed.2d 453 (2018).

Assessed in the light cast by this standard, one of Kesterson's constitutional claims succeeds at this stage and two fail as a matter of law.

Start with the successful claim, the First Amendment retaliation challenge. To show retaliation, Kesterson must establish (1) that the First Amendment protects her speech, (2) that she suffered an injury that would deter a person of "ordinary firmness" from continuing to speak out, and (3) that Linder's actions were motivated at least in part by Kesterson's speech. Jenkins v. Rock Hill Local Sch. Dist. , 513 F.3d 580, 585–86 (6th Cir. 2008).

Kent State concedes that the First Amendment protects Kesterson's sexual assault allegations. And factual disputes prevent us from resolving the remaining two elements one way or the other. Consider Linder's treatment of Kesterson after she told the coach that her son raped her and the impact these actions would have on a reasonable person. Linder stopped calling Kesterson by her nickname and chastised her in front of another coach for becoming emotional during a practice. Linder also removed Kesterson from her starting shortstop position in favor of a younger player and limited her playing time. Then there's the fact that Kesterson had to attend multiple events at the Linder home, where Tucker lived at the time. Kesterson claims Linder made her go even after Kesterson objected that she felt uncomfortable going there. Whether or not these actions would deter an ordinarily firm person from speaking out turns on a number of things: Is this what really happened? Is Kesterson or Linder more credible? How do the true facts line up with the dynamics of a player-coach relationship? see Fritz v. Charter Twp of Comstock , 592 F.3d 718, 724 (6th Cir. 2010). On the record so far, these are questions best answered by a jury rather than a panel of three judges.

The same holds true for Linder's motivation for treating Kesterson in this way. She did not report the allegation of assault against her son but notified the school about another softball player's report of abuse. Linder admitted that Kesterson's report made her worry about Tucker's reputation. Then there's Kesterson's allegation that Linder told her not to tell anyone else about the incident. Maybe these realities taken together reveal a desire to punish Kesterson for speaking out. Or maybe they simply reflect a mother trying to protect her son. A factfinder must resolve the point.

None of this would matter, it is true, if the law Linder allegedly violated was not clearly established. But we think the case law, by 2014, had put beyond debate that a coach at a state university cannot retaliate against a student-athlete for speaking out by subjecting her to harassment and humiliation. For decades, employees at "state colleges and universities" have known that those institutions "are not enclaves immune from the sweep of the First Amendment." Papish v. Bd. of Curators of Univ. of Mo. , 410 U.S. 667, 670, 93 S.Ct. 1197, 35 L.Ed.2d 618 (1973) (per curiam) (quotation omitted). Students may exercise their First Amendment rights unless doing so would "materially and substantially disrupt" school operations. see Healy v. James , 408 U.S. 169, 189, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972) (quotation omitted); Hazelwood Sch. Dist. v. Kuhlmeier , 484 U.S. 260, 272, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988). And school officials may not retaliate against students based on their protected speech. see Papish 410 U.S. at 670, 93 S.Ct. 1197 ; see also Kincaid v. Gibson , 236 F.3d 342, 354 (6th Cir. 2001). More specifically, long before these events, our court explained that coaches could not retaliate against a player "for reporting improprieties."

Lowery v. Euverard , 497 F.3d 584, 600 (6th Cir. 2007) ; see also Seamons v. Snow , 206 F.3d 1021, 1030 (10th Cir. 2000).

Based on these cases, a reasonable coach would have known at the time Linder acted that she could not retaliate against a student athlete for reporting a sexual assault. All that remains is for a jury to decide whether Kesterson can carry her burden of proof.

Linder objects that her actions against Kesterson were "inconsequential" and could not have deterred her because she told others about the alleged rape. Linder Appellee Br. 16. But a coach's view of how a player should react to her language and actions cannot by itself carry the day. Bell v. Johnson , 308 F.3d 594, 606 (6th Cir. 2002). That Kesterson told others what happened bears on the inquiry but is not dispositive. See id. It's not hard to think of situations in which players might tell others what a coach has done to them for moral support, not because they do not fear retaliation from the coach.

Linder adds that she had a legitimate reason for every decision she made about Kesterson, whether it's playing time, nicknames, criticism, or attendance at team events. see King v. Zamiara , 680 F.3d 686, 710 (6th Cir. 2012). Maybe so. But Kesterson does not have to prove that speech-related animus alone drove Linder's...