“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.