CINCINNATI (CN) — The Sixth Circuit on Thursday reinstated a First Amendment retaliation case brought by a former Kent State University softball player who claims her coach and the university tried to cover up her rape accusations against the coach’s son.
Lauren Kesterson began her career at Ohio’s Kent State in 2012 and claimed she was raped by Tucker Linder, a baseball player at the school, in December of the same year.
He is the son of former softball coach Karen Linder, who recruited Kesterson and coached the team until her resignation in 2015, shortly before Kesterson filed the lawsuit at issue.
Kesterson told her coach about the alleged rape at an end-of-year meeting in May 2014, and claims Linder failed to report it to the school’s Title IX office despite being a “mandatory reporter.”
Several other officials were also notified of the allegations, but Kesterson says none of them took any action, and the school only began an investigation when she contacted the Title IX office directly.
The ensuing investigation culminated in Linder’s resignation and Kesterson’s suit against her former coach and the university, which included claims for First Amendment retaliation, equal protection and Title IX violations.
U.S. District Judge Sara Lioi, a George W. Bush appointee, granted the defendants’ motion for summary judgment in 2018, ruling that Linder was not an “appropriate person” for Kesterson’s initial complaint regarding the alleged rape.
The case was argued before a Sixth Circuit panel in October 2019, which released a per curiam opinion on Thursday reviving the lawsuit in part.
The panel found that questions of fact remain regarding Kesterson’s First Amendment claim – specifically, that Linder’s treatment of the player after she reported being raped might have prevented her from speaking to university officials.
“Linder stopped calling Kesterson by her nickname,” the opinion states, “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.”
The ruling also notes that “Kesterson had to attend multiple events at the Linder home, where Tucker lived at the time,” despite allegedly saying she felt uncomfortable.
“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? On the record so far, these are questions best answered by a jury rather than a panel of judges,” the opinion states.
Linder argued that a coach’s influence on a player is not clearly established in First Amendment caselaw, citing the Sixth Circuit’s 2003 ruling in Henley v. Tullahoma City School System, but the panel disagreed.
“Henley did not say that a coach would be spared liability for the types of actions Linder took. The decision indeed said a coach could face liability if a player’s speech motivated a coach’s decision. That warning came to roost here,” the judges found.
But the panel refused to accept Kesterson’s arguments regarding her equal protection and Title IX claims and upheld that part of the lower court’s ruling.
According to Thursday’s opinion, the university only became aware of the rape allegations when Kesterson spoke directly with Erin Barton, one of its deputy Title IX coordinators, in 2015. The judges held that Kent State’s actions were not “clearly unreasonable” under the standard of deliberate indifference.
“Kesterson told Barton about the alleged rape on August 24, 2015. Barton started an investigation immediately after Kesterson’s report. Four days later, Linder was forced to resign or face termination. And a week later, Kent State confirmed that Tucker was not enrolled for the upcoming semester,” the ruling states.
The panel was comprised of U.S. Circuit Judges Jeffrey Sutton and Raymond Kethledge, both appointees of George W. Bush, as well as U.S. Circuit Judge Jane Stranch, a Barack Obama appointee.
Stranch dissented in part from the per curiam opinion, writing that all of Kesterson’s claims should have been remanded back to the district court.
She disputed the majority’s conclusion that Linder was not an appropriate person for reporting complaints under Title IX, and said the coach could have taken corrective action on behalf of the university.
“Linder was not just any coach,” Stranch wrote, “as the majority opinion suggests; she was the head varsity coach for the softball team and was involved in the day-to-day activities of the team members.”
The judge added, “Linder had control over Kesterson’s schedule, training, and scholarship, and she could have easily taken measures to remedy the hardships Kesterson faced while attending practice and school.”
Stranch also found evidence to support Kesterson’s deliberate indifference claim, and said Linder’s request to Kesterson to keep the allegations confidential and the coach’s refusal to report them to Kent State’s Title IX office created issues of fact that should have prevented the district court from granting summary judgment.