Academia, Free Speech, Torts

Better Sooner Than Later? Oklahoma Coaches Claim Right to Discipline Players For Unpopular Viewpoints
There is an interesting case developing in the University of Oklahoma on free speech on campuses. Volleyball Player Kylee McLaughlin sued coaches Lindsey and Kyle Walton after she was allegedly excluded from the team for expressing conservative or unpopular views. What is notable is that, in the motion to dismiss, the coaches argue that they have a right, if not an obligation, to exclude players who are unpopular due to their views. According to the complaint, they further suggested that such action prepares “Sooner” athletes for the real world. While the case has drawn little attention beyond the site The College Fix, it raises serious issues for academia and free speech (as well as an intentional infliction of emotional distress claim).McLaughlin was the OU team captain and first team All-Big 12 selection in 2018 and 2019. However, according to the OU Daily, she drew the ire of fellow students after the team showed the Netflix documentary “13th.” McLaughlin reportedly said, while “she agreed 100% that slavery was wrong,” she thought the film was “slanted left.” She also thought that the film went out of its way to criticize then-U.S. President Donald Trump. She also stated, in response to another aspect of the film, that “Black incarceration was higher than other racial groups while representing a smaller overall percentage of the population.”Later McLaughlin objected on Twitter to the University of Texas’ move to drop its school song “The Eyes of Texas.” Lindsey Walton “urg[ed] her to delete [the] tweet” and explained that “I can’t save you when you get into the real world when you leave here.”  Kyle Walton was reportedly more direct and told her “[I’m] not sure I can coach you anymore.” In the end, McLaughlin apologized to the Texas volleyball players and its head coach for the tweet.However, the damage was done and McLaughin was effectively declared persona non grata. She was reportedly given the option of transferring schools, keeping her scholarship as a student, or “redshirting for the season and practicing separately without her teammates throughout the year.” (McLaughlin ultimately transferred from OU to Ole Miss).What was notable about the motion to dismiss was this argument:

“While Plaintiff was free to make bigoted statements, she was not free from the consequences of how her teammates perceived those statements,” the Waltons’ motion states. “The First Amendment cannot force her teammates to trust Plaintiff or desire to play with her. Consequently, the Complaint makes clear that Coach Walton was within her rights to cultivate a winning ‘team atmosphere by ensuring the players that ‘trust’ each other would be on the court.”

The implications of this argument are chilling.  It would suggest that any unpopular athlete can be — and should be — excluded to “cultivate a winning team.”  (Notably, the Sooners ended the 2020-21 season with a 4-14 record and went 3-11 in Big 12 play.)

There are a great number of reasons why a player could be unpopular. Indeed, this argument was once used against minority students to preserve team “cohesion” or “identity.” In this case, McLaughlin was excluded not because of her athletic skills (which were obviously considerable) but her unpopular viewpoints.

In another remarkable twist, the coaches argue that the lawsuit to protect free speech is itself a threat to free speech. They rely on Oklahoma’s broad anti-SLAPP act. 1 12 O.S. § 1430, et seq, which is meant to “encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” 12 O.S. § 1430. So, by allegedly threatening and sanctioning as student, the coaches allege that they are protected under the law.

The Board of Regents also filed a motion to dismiss. It is based primarily on an Eleventh Amendment claim of immunity. The university argues that:

“Plaintiff’s Amended Complaint (the “Complaint”) amounts to nothing more than an inimical rant targeting several characters—parties and nonparties alike—for difficult conversations that followed the murder of George Floyd and the nationwide discussions of social injustice and inequality in America. Plaintiff states that she has been branded a racist and a homophobe by the Defendants. It was only after the Complaint was filed that Plaintiff received the attention complained about: in other words, Plaintiff caused her own harm.”

The university also insists that there was no concrete harm committed on campus by the university: “While the Complaint’s digressive nature espouses instances of roommates, teammates, and third level hearsay, Plaintiff can point to no conduct by the University or its officials in retaliation to on campus free expression.”

The two motions to dismiss clearly have some inherent conflict. The coaches are suggesting that they could — and should — exclude some players due to unpopular beliefs while the Board is arguing that there was no official retaliation for McLaughlin’s viewpoints. However, motions to dismiss often state extreme positions to show a lack of merit in a claim. Here the coaches are saying that, even if they did what McLaughlin said, they would have been in the right to do so.

The argument goes too far for me from a free speech standpoint. It would suggest that a BLM supporter or a pro-life supporter could be excluded over a lack of cohesion with a team. I fail to see the limiting principle.
On the torts question, it could be challenging to prove an intentional infliction of emotional dismiss. However, this will depend greatly on the discovery in the case. For a motion to dismiss, the court must assume the fact in favor of the non-moving party. Thus, it could be difficult for the court to dismiss the case without allowing full discovery absent a threshold jurisdictional or immunity defense like the one raised by the Board of Regents.

 

91 thoughts on “Better Sooner Than Later? Oklahoma Coaches Claim Right to Discipline Players For Unpopular Viewpoints”

  1. OU is a *government* school. Its coaches are *government* employees. This is the government punishing McLaughlin for the expression of her opinions.

    If that is *not* a violation of 1A, then there is no such thing.

    2. The Bolshevik coaches claim she was kicked off the team for causing a disruption, but it’s just as true to say that her intolerant teammates caused the disruption. But, ultimately, the primary cause was the coaching staff that decided to provoke political antagonism. These are truly awful people making stupid and offensive decisions and arguments. I hope the plaintiff’s lawyers are up to the task.

  2. UpstateFarmer says:

    “Perhaps that is why Professor Turley has created this blog. To point out the threat to the free speech we are seeing.”

    Exactly, like the Republicans kicking Liz Cheney off her House leadership post for exercising her freedom of speech, but curiously no indignation of her being “cancelled” by you Trumpists. And complete silence from the Free Speech Originalist himself, Jonathan “Fox News” Turley.

    I guess Liz just wasn’t- dare I say it- a “team player.” Wasn’t that what you Trumpists said?

    Hypocrites one and all…

      1. Care to flesh out that criticism? If you are expecting a reply, you gotta give me more to work with.

        1. Yes. Liz Cheney’s statements were not punished by state action. Thus, they did not violate the First Amendment or the Fourteenth Amendment as the Oklahoma coaches’ actions did.

          1. William,

            Apparently, you are not aware of Turley’s views on Free Speech. His concern is not limited to Big Brother infringement, he is also concerned with Little Brother infringement. He is concerned whenever someone’s free speech results in negative repercussions. The gist of this article is not with the First Amendment violation, but more with the Right’s pushback against so-called “cancel culture.”

            Turley writes:

            “McLaughlin reportedly said, while “she agreed 100% that slavery was wrong,” she thought the film was “slanted left.”

            Suppose McLaughlin stated instead that she did NOT agree that slavery was wrong. Would her teammates and coaches then be obliged to keep her on the team? I am asking you a hypothetical in order to prove a point, namely, that there are people whose views are so abhorrent that they should be discriminated against where, as here, there is no First Amendment right to belong on this team.

            I can agree as a factual matter that her Christian views were NOT sufficient reason to refuse her participation, provided that you can agree as a matter of principle that a team should be free to reject the participation of a player who is an avowed racist.

            1. There is no political viewpoint she could express that would allow her to be kicked off the team legally. Of course, her opinions at issue in this case are shared by the overwhelming majority of Oklahomans, and it is thus the views of the coaches that are abhorrent.

            2. I would point that some of her teammates appear to be racists (not “avowed”), while there is no allegation of racist conduct by the plaintiff.

              2. William,

                Do you know what a hypothetical question is? I asked a hypothetical. Will you answer it or continue to deflect?

    2. Liz Cheney is still a member of Congress, still receiving a pay check and all her Congressional benefits.
      Her term in Congress will be determined by the voters in her district. Even then, she will continue to receive Congressional benefits.

      Significantly different than a young woman, who, “However, the damage was done and McLaughin was effectively declared persona non grata. She was reportedly given the option of transferring schools, keeping her scholarship as a student, or “redshirting for the season and practicing separately without her teammates throughout the year.” And then transferred to another college.
      Or, ran out of town as another poster noted.

      I have said on more than one occasion, I am not a Trump supporter. I donated money to Tulsi Gabbard twice. I voted 3rd party in both 2016 and 2020.

      Now I understand your hate for Professor Turley, you cannot cancel him. He runs his this site with his own money. He cannot be demonetized.

      1. UpstateFarmer,

        I despise only people who have the chutzpah to tell me who I hate. House Minority leader McCarthy called Cheney a “Pelosi Republican.” That is the very definition of “persona non grata.”

        You may not be a Trumpist, but you certainly lie like one.

        1. “Persona non grata” will be determined by Cheney’s voters. Not by anyone else.

          I do not have to tell you who you hate.
          Your posts speak for themselves, and speak volumes.

          1. UpstateFarmer,

            Do yourself a favor and Google “persona non grata.” I was afraid I wouldn’t get a straight answer out of you. You are as cock-eyed in your thinking as Tulsi Gabbard, a laughing stock.

            By the way, I think you hate me. True or false?

            1. I cannot hate someone I do not know, nor have never met. So that would be false.
              I am perfectly indifferent to your existence.

              I find your posts and responses to be inane, and no longer worthy of my time and attention.

              I wish you good health and fortune.

              Good-bye.

Comments are closed.