Teen Soccer Player Fights Suspension Over Celebratory Bird

MANHATTAN (CN) — Days after the Supreme Court backed a high school cheerleader whose expletive-laden Snapchat got her suspended, the Second Circuit looked Friday at the case of a college soccer player whose fleeting middle-finger salute cost her a scholarship to attend the University of Connecticut.

Noriana Radwan was an 18-year-old freshman when she briefly flipped the bird to an ESPNU camera that was filming her team's celebration on the pitch after the University of Connecticut Huskies defeated University of South Florida 3-2 on penalty kicks in the 2014 American Athletic Conference championship.

UConn's then-coach, Len Tsantiris, instantly suspended Radwan from the tournament and issued a statement apologizing to the conference, USF and those who watched the game on television.

A month later, Tsantiris informed the native New Yorker that the school was canceling her full out-of-state athletic scholarship for the spring 2015 semester.

Radwan filed suit in 2015, accusing the university, coach and athletic director of violating her First Amendment rights and Title IX, the federal law prohibiting gender discrimination in education. Backed by the American Civil Liberties Union, Radwan notes that her punishment was more severe than any discipline given to male student-athletes who engaged in similar or worse acts of unsportsmanlike conduct.

She is seeking a reversal now after U.S. District Judge Victor A. Bolden ruled against her at summary judgment.

Finding no suitable comparison case, the Bridgeport, Conn.-based Bolden said Radwan was the only student-athlete to make an obscene gesture on national television during a school event and was the only one to be punished by the American Athletic Conference as well.

A three-judge panel of the Second Circuit considered Radwan's appeal at a 55-minute teleconference on Friday morning. Radwan's attorney Andrew Tutt warned that affirming the ruling would give UConn a license to apply unconstitutional “speech codes” in every school activity.

“This is a fleeting-expletive case; athletes on NCAA teams say swear words on the field all the time,” said Tutt, who is with the firm Arnold & Porter in Washington. “If they can punish this, then they can take away scholarships every time a microphone picks up one player swearing to another.

“And, as one of the amici pointed out, if they can punish this, why couldn’t they punish her for saying ‘hell yes, we won'? There would be no limit to the First Amendment restrictions on student athletes,” Tutt added.

Tutt also emphasized that Radwan's explicit gesture occurred after the game.

“No one thinks she was speaking for the team, and the team had many other ways of communicating that this was no consistent with their values, that they found it embarrassing," the lawyer argued. "It didn’t have to take away her full-ride scholarship.”

Rosemary McGovern, an attorney for the university defendants, urged the Second Circuit to affirm.

“If summary judgment is reversed,” McGovern said, "a rule will be established that a college or university cannot in any way discipline a student athlete who makes a lewd or vulgar gesture on national television while representing the school, and this cannot be the case."

The hearing comes only days after the Supreme Court ruled 8-1 in favor of a Pennsylvania cheerleader, Brandi Levy, whose profanity-strewn Snapchat got her suspended from her high school squad.

McGovern asserted on Friday that coach Tsantiris and athletic director Manuel are entitled to qualified immunity.

“With regard to plaintiff’s Title IX claim, plaintiff failed to satisfy her burden to come forward with evidence that there was a triable issue of fact that defendants’ decision to discipline her was at all motivated by her gender,” McGovern argued.

As for property interest in an athletic scholarship that was only set for one year, McGovern said Radwan had none. "Nonetheless she was provided all the process she was due under the 14th Amendment: notice and opportunity to be heard," the lawyer added.

McGovern also asserted that it was objectively reasonable for the school and coaches to believe that they were not violating Radwan’s First Amendment rights when they disciplined her for showing her middle finger on national television.

“There’s no political or religious view that she has expressed,” the attorney said.  “In fact, it’s unclear what view she was expressing at all. Judge Holden’s decision held that it was a question of fact as to whether the plaintiff has even engaged in protected speech by raising her middle finger."

U.S. Circuit Judge Susan Carney, an Obama appointee, was joined on the panel Friday by Trump appointees U.S Circuit Joseph Bianco and U.S. District Judge Komitee, who was sitting by designation from the Eastern District of New York.

“This was about more than a tournament, and even more than a lost scholarship. This was about discrimination on the basis of sex,” Radwan wrote last December for the ACLU, which supported her appeal in an amicus brief. “UConn’s harsh punishment left me feeling ostracized. 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,” she wrote.

“When men conduct ‘unsportsmanlike’ behavior, they’re seen as passionate about their sport,” Radwan wrote. “But when a woman does the same thing, she’s perceived as angry or emotional, just throwing a fit. It isn’t fair, and it’s discrimination.”

After she was stripped of her UConn scholarship, Radwan transferred to Hofstra University on Long Island, where she was on a partial athletic scholarship.

The three-judge panel reserved decision on Radwan’s appeal.

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