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.

Adair implemented changes after a mandated diversity training order from the Atlantic Coast Conference. We have seen such mandated training programs in colleges and corporations — programs that can raise concerns over compelled speech and viewpoint discrimination. As a state school, Virginia Tech is subject to the limitations imposed on the government under the First Amendment.

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.

The complaint alleges that, during the halftime in a game with Virginia, Adair singled out Hening and ridiculed and denounced her in front of the team as being selfish and “bitching and moaning” rather than being a team player in supporting the diversity displays. She was pulled as a starter in the next game against Clemson and again Adair allegedly berated her publicly. She was also left off the starters in the next game against North Carolina.  She claims that the abuse and shunning became so great that she was forced to resign.

One issue may be that she elected to resign. The school can argue that she was allowed to refuse to participate in the displays and that the decision to use players is based on a coach’s discretion.  She did in fact play, though not as a starter or not for very long in these games. Moreover, she resigned only after a few games rather than raise the issue with the university and allow time for resolution.

Nevertheless, the complaint alleges clear forms of retaliation and harassment against a student for her political and social views. If true, Adair was using his position to pressure and abuse a student for not adhering to the preferred view of BLM and diversity displays.

We have been discussing students and teachers who disagree with aspects of BLM while supporting the movement for racial equally. There has been a growing intolerance for such dissenting views. At Berkeley, even an anonymous letter from a faculty member (who feared retaliation) was condemned by colleagues. At UChicago, a respected academic was the subject of a campaign to his termination simply because he criticized BLM and questioned claims about police abuse.  A University of Pennsylvania professor faced calls for his termination when he questioned an anti-racism statement. A Harvard professor was the subject of such a campaign for questioning the support for some claims of police abuse. A UCF professor was put under police protection after challenging certain claims as akin to “black privilege.” A Cornell professor was attacked by his own colleagues for voicing dissenting views about BLM and its underlying claims. A Virginia professor had to take a leave of absence after criticizing BLM. Even students have been subject to formal condemnations for criticizing the BLM movement or questioning its claims like a recent controversy at Georgetown. Students in New York colleges have faced such retaliation for their views, including again Cornell. A Wisconsin student columnist was fired for voicing opposing views of defunding the police.

Few faculty or students want to face such campaigns or labelling For its part, BLM has denounced even criticism of the real estate purchases of one of its founders as “terror by White Supremacists.”

The targeting of students is particularly concerning. Rather than use his position to reaffirm that there can be divergent views on a team, Adair is accused of using his position to isolate and abuse this student.

This controversy shows why students feel increasingly uncomfortable in speaking freely on our campuses.  We previously discussed a Gallup poll showing ninety percent of Pomona students said that they did not feel free to speak openly or freely. It is an indictment of not just Pomona but many of our colleges. This is not a problem for many students but an increasingly small percentage of self-identified conservatives. One recent poll shows the already small population of conservative and Republican students has been cut by roughly half. The Crimson survey covered over 76 percent of the Harvard College Class of 2024 and found that the class contained 72.4 percent who self-identify as either “very liberal” or “somewhat liberal.” Only 7.4 percent self-identify as “very conservative” or “somewhat conservative.”  Another Harvard study showed that 35 percent of conservatives felt that they could share their views on campus.

Again, Adair and Virginia Tech have yet to respond to this lawsuit. However, the allegations are extremely serious in my view from a free speech perspective. There is a crushing irony to the allegations. Kaepernick was allowed to kneel in protest in the NFL. However, now students are complaining that they are not being allowed to stand for the anthem without retaliation and harassment.

The complaint should be enough to get through a motion to dismiss unless the court deems the resignation to be determinative. I do not see why it should be since Hening is still alleging a pattern of abuse from a state actor. If that were a determinative factor, most of the employment discrimination cases that resulted in a person quitting would not be actionable because they did not wait to be fired. If Hening makes it through the motion to dismiss, she would be allowed discovery of emails and other possible evidence on the response of Adair and his staff to this dissenting student.