I missed this when Jonathan Turley wrote about it last year. A female soccer player at Virginia Tech claimed she was punished by her coach after refusing to kneel like Colin Kaepernick while a “unity statement” was read at halftime during a game.
The lawsuit of Virginia Tech student Kierstien Hening begins with a simple statement: “Kierstien Hening refused to kneel.” The lawsuit filed this week against Virginia Tech soccer coach Charles “Chugger” Adair (in his official capacity) alleges that when Hening refused to kneel and support Black Lives Matter, she was benched, harassed and ultimately forced off the team. If the allegations are true, she could have not only a winning case but a case that could set important precedent for the freedom of speech…
Hening alleges that Adair wanted the student to emulate former NFL player Colin Kaepernick in kneeling before games and wanted to replace the name “Hokies” on the back of their jerseys with the names of people killed by police.
During meetings, Hening objected to the changes as compelled speech and said that she disagreed with aspects of the BLM movement. She was then allegedly labeled a “racist” by some on the team.
The complaint states that only two students objected to kneeling but the other student was on a scholarship and her parents called Adair to warn him not to harass their daughter for her political views. Instead, Hening alleges, Adair singled her out as well as speaking negatively about some people who believe “all lives matter.” She says that her refusal to kneel led to her benching and eventual removal from the team. It also allegedly resulted in a torrent of abuse verbally and on social media.
It doesn’t take long for the left to move from free speech to kneel before games for Colin Kaepernick to mandatory kneeling before games by everyone. In this case, Hening refused to comply and got called out by the coach and then pulled from the starting lineup during the next couple games. Prior to the coach’s outburst she had started in over 40 games and usually played for the full game.
Today, Judge Thomas Cullen ruled that Hening’s case against coach Adair can go to trial. Here’s a bit of Judge Cullen’s decision.
It is well-established that the First Amendment’s protection of freedom of speech includes “both the right to speak freely and the right to refrain from speaking at all.” As a necessary corollary to protect that fundamental right, the “right of free speech includes … the right to be free from retaliation by a public official for the exercise of that right.” To establish a claim for First Amendment retaliation, Hening must put forth sufficient evidence that: (1) she engaged in protected First Amendment activity; (2) Adair took some action that adversely affected her First Amendment rights; and (3) there was a causal relationship between her protected activity and Adair’s actions…
The court concludes that there is sufficient evidence in the record supporting Hening’s claim that Adair’s actions, whatever his motives, adversely affected her First Amendment rights.
Judge Cullen says Hening will still have to prove that she was targeted specifically and solely because of her refusal to kneel. He says that while there is not enough evidence for a summary judgment in her favor, there is plenty for a jury to weigh.
to prevail on her retaliation claim, Hening must also establish the requisite causal connection between her refusal to take a knee—i.e., her protected First Amendment activity—and Adair’s alleged adverse actions towards her. This is a high hurdle, and “[i]t is not enough to show that an official acted with a retaliatory motive and that the plaintiff was injured—the motive must cause the injury.” … [T]he alleged retaliatory motive must be a “but-for” cause, meaning that the plaintiff must prove that the defendant would not have taken the adverse actions against her absent his retaliatory motive….
Genuine issues of material fact preclude the court from granting summary judgment on this score. As a threshold matter, Adair claims that there is no evidence that he was even aware that Hening stood during the Unity Statement when he harshly criticized her at halftime, but this is belied by the record. Still photographs from the game film clearly depict Adair, who is kneeling on the sideline, looking in Henning’s direction as she remained standing ….
Coach Adair apparently claimed that he wasn’t personally invested in the whole controversy but that also appears to not be the case. He was overheard talking about the divide among his players before the season started. It was also well known that Hening was a Trump supporter:
In off-the-record comments to ACC Network broadcasters prior to the season (which were overheard by a Virginia Tech sports information official), Adair lamented this divide and his team’s lack of consensus on how to support social-justice initiatives. All of this suggests that this apparent BLM- and social-justice divide was far more significant to Adair at the time than he would have the court believe today.
Hening suggests that the “side” of this issue that Adair considered “open” and “great” was the pro-BLM side, and that the small group making “side comments later on that struck a nerve” was the anti-BLM contingent with which she aligned…
it was no secret among the players and coaching staff that Hening was an outspoken conservative and supporter of former President Donald Trump. Macaulay Soto, the Director of Operations for the women’s soccer team and a BLM supporter, recalled that Hening “was the only one who consistently posted a lot of [conservative] things on her social media.”
Judge Cullen’s full opinion is here. The bottom line is that this is going to trial and a jury will get to decide whether the coach’s various denials are believable. You’d think that all of the people who argued that Colin Kaepernick’s decision to kneel was free speech (even if it created problems for the private industry he worked for) would be on Hening’s side here but of course they aren’t.