MANHATTAN (CN) — A soccer player who lost her college scholarship won a reversal Wednesday, with the Second Circuit finding that Noriana Radwan's sex discrimination claims should have survived summary judgment.
The ruling comes eight years after Radwan was a freshman playing for the University of Connecticut Huskies when the team defeated University of South Florida 3-2 on penalty kicks in the American Athletic Conference championship.
As the team celebrated their victory on the pitch, an ESPNU camera panned to a group of women in uniform screaming and hugging. "Without thinking," Radwan would later write in an essay for the American Civil Liberties Union, the 18-year-old raised her middle finger and her life changed forever.
Len Tsantiris, the longtime head coach at UConn, instantly suspended the native New Yorker from the 2014 tournament and issued a statement apologizing to the conference, USF and those who watched the game on television.
A month later, Tsantiris informed Radwan that the school was canceling her full out-of-state athletic scholarship for the spring 2015 semester. “UConn’s harsh punishment left me feeling ostracized,” Radwan later told the ACLU. “They attacked my whole identity as a career athlete. And I don’t think the same thing would have happened if I were a male athlete.”
Though a federal judge dismissed Radwan's case at summary judgment, an appellate court found Wednesday that it should be left up to a jury whether Radwan's suspension and abrupt scholarship termination was biased and more excessive than the punishment a male athlete might face for similar unsportsmanlike conduct.
“Viewing the facts in the light most favorable to Radwan, a reasonable jury could conclude that one or more of these male student-athletes at UConn was sufficiently similar in all material respects to Radwan to raise an inference that, but for her gender, she would not have received the more severe punishment of termination of her scholarship,” the 96-page opinion states.
“Simply put, a jury needs to: (1) determine whether the novelty of Radwan’s conduct and its timing in relation to the game are material factors in assessing whether Radwan and Adams are similarly situated; and (2) weigh whether the relative level of embarrassment to UConn from their respective misconduct renders their situations different."
U.S. Circuit Judge Joseph Bianco, a Trump appointee, wrote the decision for a three-judge panel. Along with U.S. District Judge Eric R. Komitee, a Trump appointee sitting by designation, and the Obama-appointed U.S. Circuit Judge Susan Carney, Bianco heard Radwan's appeal in Manhattan last year.
Radwan was represented on appeal by Andrew Tutt from Arnold & Porter. “This is a fleeting-expletive case; athletes on NCAA teams say swear words on the field all the time,” Tutt told the court at oral arguments. “If they can punish this, then they can take away scholarships every time a microphone picks up one player swearing to another."
While Radwan will get to advance her Title IX claims on remand, the court affirmed dismissal of her procedural due process and First Amendment claims on the grounds of qualified immunity.
ACLU Foundation of Connecticut attorney Elana Bildner called the remand order "a victory for women's rights and Title IX, as it affirms that colleges should not discipline women athletes more harshly than their male peers."
"The court's decision is good news for gender justice and equality, but it is disappointing that the court missed the opportunity to affirm students' First Amendment rights to free expression," she added.
A representative for the Connecticut Office of the Attorney General did not have a comment Wednesday, saying only that the office is reviewing the decision and evaluating next steps.
At oral arguments, the school's lawyer denied that Radwan's gender was a motive in the decision to discipline her.
UConn's longtime head coach Tsantiris retired after the 2017 season, concluding a 37-year career with the school.
Radwan today is working for her doctorate degree in industrial engineering at Penn State University. After she was stripped of her UConn scholarship, she transferred to Hofstra University on Long Island, which offered her a partial athletic scholarship.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.