Radwan v. Manuel

• Decision Date: 30 November 2022
• Docket Number: 20-2194,August Term 2020
• Parties: Noriana RADWAN, Plaintiff-Appellant, v. Warde MANUEL, Leonard Tsantiris, and Mona Lucas, in their individual capacities, and the University of Connecticut Board of Trustees, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

55 F.4th 101

Noriana RADWAN, Plaintiff-Appellant,

v.Warde MANUEL, Leonard Tsantiris, and Mona Lucas, in their individual capacities, and the University of Connecticut Board of Trustees, Defendants-Appellees.^*

No. 20-2194

August Term 2020

United States Court of Appeals, Second Circuit.

Argued: June 25, 2021

Decided: November 30, 2022

Andrew T. Tutt (R. Stanton Jones, Kolya D. Glick, Graham W. White, Shira V. Anderson, on the brief), Arnold & Porter Kaye Scholer LLP, Washington, DC; Gregory J. Tarone, Sports Lawyers International PLLC, Mount Kisco, NY (on the brief); Jonathan J. Klein, Parlatore Law Group, LLP, Bridgeport, CT (on the brief), for Plaintiff-Appellant.

Rosemary M. Mcgovern, Assistant Attorney General, for William Tong, Attorney General; Michael Skold, Deputy Solicitor General, Hartford, CT, for Defendants-Appellees.

Before: Carney, Bianco, Circuit Judges, and Komitee, District Judge.^**

Joseph F. Bianco, Circuit Judge:

In 2014, Noriana Radwan, then a women's soccer player at the University of Connecticut ("UConn") and recipient of a one-year athletic scholarship, raised her middle finger to a television camera during her team's post-game celebration after winning a tournament championship. The game was being nationally televised and Radwan's gesture was captured on the broadcast. Although she initially was suspended from further tournament games, Radwan was ultimately also punished by UConn with a mid-year termination of her athletic scholarship. She brought this lawsuit against UConn (through its Board of Trustees) and several university officials alleging, inter alia , a violation of her First Amendment and procedural due process rights under 42 U.S.C. § 1983, as well as a violation of Title IX of the Education Amendments Act of 1972 ("Title IX"), 20 U.S.C. § 1681, in connection with the termination of her scholarship. On appeal, Radwan challenges the decision of the district court (Bolden, J.) granting the defendants’ motion for summary judgment on those claims.

We agree with the district court's decision to grant summary judgment as to Radwan's First Amendment and due process claims. With respect to the free speech claim, we do not address the district court's determination that there were triable issues of fact as to whether UConn's discipline of Radwan violated her First Amendment rights, but rather affirm the district court's ultimate holding that summary judgment must be granted in favor of the individual defendants on qualified immunity grounds. Second, although we conclude that Radwan possessed a constitutionally protected property interest in her one-year athletic scholarship, which could be terminated only for cause under its terms, we affirm the grant of summary judgment on the ground that the individual defendants are entitled to qualified immunity because such a right was not clearly established at the time of the scholarship's termination.

However, we disagree with the district court's conclusion that Radwan's Title IX claim does not survive summary judgment. Radwan has put forth sufficient evidence, including a detailed comparison of her punishment to those issued by UConn for male student-athletes found to have engaged in misconduct, to raise a triable issue of fact as to whether she was subjected to a more serious disciplinary sanction, i.e. , termination of her athletic scholarship, because of her gender.

Accordingly, we AFFIRM the district court's grant of summary judgment as to Radwan's procedural due process and First Amendment claims and VACATE the district court's judgment to the extent it granted summary judgment to UConn on the Title IX claim. The case is REMANDED to the district court for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual Background¹

In early 2014, Radwan was a high school senior in New York and a skilled soccer player. After receiving offers for athletic scholarships from multiple colleges in Division I of the National Collegiate Athletic Association ("NCAA"), Radwan chose to attend UConn and accepted its offer of an athletic scholarship to play on its women's soccer team. As an NCAA Division I school and member of the American Athletic Conference ("AAC"), UConn is subject to the bylaws, rules, policies, and code of sportsmanship of both entities.

1. The Terms and Conditions of Radwan's Scholarship

In 2014, while a high school senior, Radwan signed both a National Letter of Intent with UConn, stating her intent to enroll at UConn, and a financial aid agreement with UConn, providing that she would receive a one-year, full-tuition, athletic scholarship for her participation on the women's soccer team.² Her athletic scholarship covered the cost of tuition, fees, room, board, and course-related books. As a condition of that scholarship, Radwan was subject to obligations and responsibilities contained in her scholarship agreement with UConn, the UConn 2013–2014 Student-Athlete Handbook, and the 2013–2014 NCAA Division I Manual.

Under the scholarship agreement, Radwan's scholarship could "be immediately reduced or canceled during the term of [the] award if" she "engage[d] in serious misconduct that brings substantial disciplinary penalty." Joint App'x at 59 (emphasis added). However, the scholarship could "not be increased, reduced or canceled during the period of its award on the basis of [her] athletics ability, performance or contribution to the team's success ... or for any other athletics reason." Id. at 58.

The UConn Student-Athlete Handbook (the "Handbook") prohibited unsportsmanlike behavior including, but not limited to, "[u]sing obscene or inappropriate language or gestures to officials, opponents, team members or spectators"; "[t]hrowing of objects at ... spectators"; and "[v]iolating generally recognized intercollegiate athletic standards or the value and standards associated with the University as determined by [the] Head Coach and approved by the Athletic Director." Id. at 73. The Handbook also noted that student-athletes "become [ ] representative[s] of [their] team and of [their] University." Id. at 73. At the beginning of the 2014–2015 school year, Radwan verified that she had an obligation to "read and understand" the Handbook and agreed that a violation of the UConn Student Code (which governed conduct for UConn students generally) could render her scholarship null and void. Id. at 295.

Under Bylaw 15.3.4.2(c) of the NCAA Division I Manual, "[i]nstitutional financial aid based in any degree on athletics ability may be reduced or canceled during the period of the award if the recipient: ... (c) Engages in serious misconduct warranting substantial disciplinary penalty." Id. at 641 (emphasis added). The NCAA bylaws at no point define "serious misconduct."

The head coach of the women's soccer team, defendant Leonard Tsantiris (hereinafter, "Coach Tsantiris"), also developed a team "contract" for the 2014 season to establish additional rules applicable to the team, which all team members received and to which they all agreed. The contract required, inter alia , that team members "comply with all University, Athletic Department and Women's soccer program rules concerning conduct and behavior." Id. at 594.

2. The November 9, 2014 Incident

In August 2014, Radwan began as a student at UConn and a member of the women's soccer team. During the 2014–15 school year, defendant Warde Manuel served as Athletic Director for UConn (hereinafter, "AD Manuel") and Coach Tsantiris served as the head coach for the women's soccer team. The assistant coaches for the women's soccer team were Margaret Rodriguez and Zachary Shaw (hereinafter "Assistant Coach Rodriguez" and "Assistant Coach Shaw"). Coach Tsantiris reported ultimately to AD Manuel, but did so through UConn's Senior Associate Director of Athletics, Neal Eskin (hereinafter "SA Eskin"), who handled day-to-day matters. During this school year, defendant Mona Lucas served as the UConn Director of Student Financial Aid Services (hereinafter, "FAD Lucas").

On November 9, 2014, the UConn women's soccer team won the AAC tournament championship game against the University of South Florida ("USF"), which was played at USF. The game was broadcast live on ESPNU. Radwan displayed her middle finger to the television camera during the team's on-field post-game victory celebration, and the gesture was broadcast nationally. The gesture lasted for a brief moment before Radwan changed it to a peace sign. The ESPNU cameraman, who had filmed Radwan's gesture, could not say that the gesture was directed at the opposing team, and further testified that he did not see any players from the opposing team while he was filming. Nevertheless, the parties agree that the gesture "created an immediate social media and internet topic." Id. at 595.

SA Eskin, who was with the women's soccer team at the game, received a screenshot of Radwan's gesture and showed it immediately to Coach Tsantiris. AD Manuel, although not at the game, was shown a screen shot of Radwan's gesture shortly after the incident. He directed the UConn Athletic Department staff to immediately contact the women's soccer coaches about the incident to ensure the behavior was not repeated. AD Manuel testified that he felt Radwan's behavior was publicly embarrassing to Radwan, the team, and UConn because it was unsportsmanlike and disrespectful.

Shortly after the game, and while still at the venue, Coach Tsantiris confronted Radwan about the gesture and informed her that she was suspended from all team activities, including the upcoming NCAA tournament. According to Radwan, Coach Tsantiris told her he knew she did not mean the gesture, and that it was a "silly mistake." Id. at 17. After midnight that night, Radwan emailed Assistant Coach Rodriguez to apologize, saying that she was "truly sorry" for the gesture, while recognizing that her apology "in no way" excused it. Id. at 65. She then stopped by the coaches’ office the following day to speak to the coaching...