Federal court’s ruling against former UConn soccer player Radwan feels absurd, punitive

Noriana Radwan flipped a giddy bird in celebration, one goofy middle finger caught on ESPNU, and UConn took away her full soccer scholarship. Nearly six years later, a federal judge flashed another digit to Len Tsantiris, Warde Manuel and UConn. Thumbs up. Summary judgment rendered. Case dismissed.

Think about how absurd it is. Think about how punitive it is. Think about how soul-crushing it was to an 18-year-old freshman. And if the assertions in the complaint are correct and the real reason Tsantiris — the now-retired longtime coach — pulled Radwan’s scholarship at December 2014 semester break was a failed attempt to land star transfer Morgan Andrews, wow, think how manipulative and heartless is this saga?

Think of all the male college athletes around the nation, including UConn, including SEC football powers, including the Ivy League, all of them, that have done worse, some much worse with violent acts. And gotten a lesser suspension or some minor slap on the wrist.

A 19-year-old freshman took a female student’s keys at a party last fall, drove off without a driver’s license into a street sign at a high rate of speed and ran off from the cops when he smelled of alcohol. James Bouknight, the shining star of the UConn basketball program, was suspended two preseason games, three regular-season games and a month full of Dan Hurley in his immature ear. Most, including me, thought the discipline was in the right ballpark.

Now consider what happened with Radwan. UConn beat USF on penalty kicks to win the 2014 AAC championship. The ESPNU cameraman panned the celebration. A reserve freshman, laughing, hugging a teammate — boom — chucked a bird in the direction of the camera. Not in anger. Not at any USF players. In thoughtless exuberance.

A month later, with former AD Manuel signing off on it, UConn took Radwan’s scholarship away. Good thing Bouk doesn’t play women’s soccer.

Using a list of trans

gressions by past UConn athletes, Greg Tarone, who represented Radwan in her federal lawsuit, made that point in a Title IX kind of way. It got Tarone nowhere in a decision by U.S. District judge Victor A. Bolden released on Monday. First Amendment freedom of speech? Fourteenth Amendment equal representation and due process? State laws? UConn won everywhere in the 59-page decision.

“We do not agree with the decision,” Tarone said. “We are exploring all aspects of an appeal.”

As far as Title IX, the court ruled Radwan’s case was not comparable because there were different decision makers who investigated and administered discipline. Terminating Radwan’s scholarship ultimately was done by Manuel, while coaches disciplined the male UConn players. The court also ruled Radwan needed to show the discipline against her was motivated by her gender and that a similarly situated man would have been subjected to the same disciplinary proceedings. Bolden agreed with UConn’s position that no reasonable jury would agree with Radwan because “no male students made an obscene gesture on national television at the conclusion of competition from 2013 from 2016.”

No kidding? That precise situation might not occur again until 3016. Still, there are sportsmanship issues that come up regularly to use as yardsticks. Tarone presented UConn safety Andrew Adams, excited after a big third-down stop at BYU in 2015, thoughtlessly kicking a football into the stands. He got a costly unsportsmanlike penalty and undisclosed team discipline — clearly much less than Radwan.

Tsantiris’ initial decision to suspend Radwan indefinitely, seemingly for the NCAA Tournament, didn’t look out of line.

Poor discretion? Yes. Unsportsmanlike? Yes. The AAC called it a violation of the code of conduct. OK.

“Serious misconduct” worthy of having her scholarship pulled at midschool year?

“Not even close,” Tarone said. “That’s a joke.”

College kids express themselves in all sorts of ways. They sing. They rap. They protest. They chant at sports events. More specifically, college athletes on the field of play express themselves in all sorts of ways. They’ll make a throat-slashing motion.

They’ll fake shooting pistols with their index fingers. They’ll taunt opponents. They’ll call another player a very bad word. Sometimes it’s caught on video. Sometimes it’s not.

Bolden’s 10 written pages in the area of the First Amendment is fascinating. Tarone called it perhaps the most comprehensive First Amendment analysis of flipping the bird in history. It stands out because it is so open to argument, yet something that could impact legal decisions down the road.

The middle finger has been used since Roman times and can be interpreted in a number of ways. Anger. Defiance. Lewdness. Excitement. Fooling around … Radwan asserted that taking away her scholarship for making a middle finger in celebratory exuberance constituted retaliation that infringed on her free speech. UConn argued that she conceded it was “inadvertent” and didn’t intend any particularized message.

The court ruled that while Radwan does have a viable First Amendment claim, because of qualified immunity, it sided with UConn. Why? The finger was publicly broadcast on national TV, rather than limited to a university setting, and that complicated matters. Courts have given more leeway in campus settings for students to express themselves. So yes, a reasonable jury could decide at trial her actions could be protected by the First Amendment and canceling her scholarship was unjustified. Yet the UConn defendants were entitled to qualified immunity from liability because they could reasonably believe they were justified in disciplining Radwan for expressed conduct broadcast on national TV for everyone to see.

From ESPNU to Deadspin to going viral in November 2014, yeah, if it only had been that regular-season game against Central Connecticut ….

“The court made it fairly clear that if the game had not gone on national TV, it would have been a different decision,” Tarone said.

Tarone said this is the longest he ever worked on a case and the longest he ever had to spend to file one. He said he drove UConn nuts with Freedom of Information requests. He ran into roadblocks everywhere. As a state university, UConn is protected by sovereign immunity laws. The court ruled that grant-in-aid was not property interest entitled to protection under the Constitution. That the scholarship did not have qualities of dependence and permanence.

Schools have the option to give

multi-year offers (instead of a oneyear scholarship that has to be renewed four times like Radwan’s and most others). It would be interesting to see how another judge would look at the rarer four-year scholarship. And how would this affect athletes who cash in on their likeness figure into property interest?

Look, this lawsuit with its various motions and complications is far beyond my paygrade as armchair attorney. This I do know: Radwan apologized. She apologized again. She kept apologizing to anyone who would listen. When former UConn President Susan Herbst emailed Manuel about the AAC punishing Radwan, he answered, “Letter of reprimand … Anything else would be excessive. She’s already been suspended by (Tsantiris).” A day later, at Radwan’s request, she met with Manuel and was remorseful. Manuel sent an email to Herbst, “Case closed with the reprimand.”

Radwan thought she’d be back on the team after an early December meeting with Tsantiris. A few weeks later, she was told her scholarship was gone.

There are so many tentacles to this. Radwan had another case in state court involving her injured shoulder as treated by the UConn training staff. Radwan did not get a hearing at UConn to appeal her loss of a scholarship because the school said she returned her letter to the UConn financial aid office a day or two late. Radwan said there was no clear return date and disputed this. Everything contentious.

Yet all along at its ugliest underbelly is this: “Left out of all the judge’s ruling is the fact that Morgan Andrews was leaving Notre Dame and Tsantiris knew it and wanted to offer her (a) scholarship,” Tarone said. “He tried to get enough money together and the only way was to get rid of Noriana’s scholarship. He needed Noriana’s scholarship. That’s the real truth.”

Andrews, who’s from New Hampshire, decided to go to USC anyway. The Trojans? They won a national championship with her. UConn? Well, UConn can exercise its right free speech to deny Tarone’s “real truth.”

In the meantime, wouldn’t it be something if some hot First Amendment lawyer argued the middle finger all the way to the Supreme Court? It would be so 2020.

jeff.jacobs@hearstmediact.com; @jeffjacobs123