ATLANTA (CN) — A Black former Kennesaw State University cheerleader asked the 11th Circuit Tuesday to revive her lawsuit against a Georgia sheriff who she says was involved in pressuring the school to punish cheerleaders who protested police brutality against Black Americans by kneeling during the national anthem at a football game.
On Tuesday, a three-judge panel of the Atlanta-based appeals court weighed whether the decision to prevent the cheerleaders from kneeling was motivated by racism or patriotism.
Tommia Dean and four other Black cheerleaders took a knee while the national anthem played ahead of a September 2017 football game. The school responded by keeping the cheerleaders out of sight for the start of several subsequent games.
Dean sued former KSU President Sam Olens, former Cobb County Sheriff Neil Warren, former state Representative Earl Ehrhart and two school athletic directors in 2018 for violations of her civil rights.
The former cheerleader alleged that Warren and Ehrhart, who was serving as chairman of the state appropriations subcommittee that handles funding for higher education, engaged in a racially motivated conspiracy to violate her First Amendment rights by pressuring Olens to stop the kneeling.
Dean settled the suit for $145,000 in 2019 but appealed a federal judge’s order dismissing Warren from the complaint.
In the order dismissing Warren as a party to the lawsuit, U.S. District Judge Timothy Batten, a George W. Bush appointee, found no evidence that he acted with racial animus.
During Tuesday’s oral arguments, U.S. Circuit Judge William Pryor, also a George W. Bush appointee, said he was “having a hard time understanding” how the lawsuit alleged that Warren or Ehrhart “harbored any animus against African-Americans.”
“The animus is shown in what they were motivated to do, your honor,” Atlanta attorney Bruce Brown argued on behalf of Dean. “They were motivated to stop [the protest.]”
But Pryor said he did not understand how opposition to the cheerleaders’ actions “alleges or creates an inference that the complainer about that conduct harbors racial animus.” The judge pointed out that there is nothing in the record showing that Warren made comments betraying any racial animosity.
“Our position is that if the motivation is to suppress speech involving racial injustice, that that is sufficient [to show] racial animus,” Brown said.
U.S. Circuit Judge Ed Carnes, a George H.W. Bush appointee, remarked that “the only allegation that touches on motive is that it was motivated by patriotism, not racial animosity.”
Carnes was referring to a quote from a text message in Batten’s order. In a message to Warren, Ehrhart thanked him for his “patriotism” in pushing Olens to keep the cheerleaders off the field for the national anthem.
Brown countered by noting that Warren has not testified in the case.
“He hasn’t even said that he did this out of patriotism – this is the trial judge finding in the record something that does not exist, a narrative that is totally fabricated,” Brown told the panel.
An attorney for Warren argued that the allegation that her client recommended keeping the cheerleaders off the field doesn’t speak to his motive at all.
“[It] may be completely true that [Warren] opposed kneeling on the field and that [Dean] was kneeling to protest police brutality but nothing connects those two things together,” Assistant Cobb County Attorney Lauren Bruce said.
Pryor appeared to side with Bruce on that point, interjecting that even if Warren was aware of the meaning behind the protest, “it doesn’t mean that he harbored racial animus.”
“Some people just don’t believe that the sidelines of a college sports athletic event is the place for political protests by people wearing the uniform of the school. That, again, is not race-based,” Bruce said.
Carnes and Pryor were joined on the panel by U.S. Circuit Judge Jill Pryor, a Barack Obama appointee. The panel did not indicate when they will issue a ruling in the case.
Follow @KaylaGoggin_CNS
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
