The lawsuit (below) alleges that a skit was held as a team-bonding exercise in which players wore facial hair makeup and some of the female players dressed as men. The plaintiffs say that there were no racial elements to the skit and the team is overseen by Coach De Ann Young, who is African American. The women did not wear blackface makeup, according to the complaint.
After the skit then-President Chris Kimball and Vice-President Melissa Maxwell-Doherty blasted the team and the event — stating as fact that the members engaged in racist displays. According to the Ventura County Star, Kimball sent out an email declaring “Blackface and the N-word evoke white supremacy, anti-blackness and remind us that a violent, racist past is still with us today.” Kimbell also promised “Those who are responsible will be held accountable.”
The complaint lists the costumes and makeup which include two Caucasian male wigs (like one from a displayed Napoleon Dynamite costume bag).
The email fueled a tsunami of media stories like the CLU Newspaper, The Echo, running an article entitled “Student-Athletes Involved in Racist Incidents.” That story was then published on February 6, 2020 by the Ventura County Star in an article entitled: “Racial Social Media Posts by Cal Lutheran Students Denounced by School Officials.” The story was also published in USA Today in an article that stated: “In one video, students wearing what looked to be blackface lipsynched a song.”
The Plaintiffs include a slap back at Kimball with this graph and a picture inserted into the complaint:
Plaintiffs are informed and believe that in order to show Defendants’ hypocrisy, pictures surfaced on Twitter that Defendant Kimball had proudly posted on his CLU social media page. The pictures were of a CLU administrator dressing as Bob Marley, with actual “Blackface” makeup and wig and imitation illegal narcotics, all of which squarely fit CLU’s newly-minted definition of “Blackface.”
The case could render important new precedent on the liability for universities in making premature or unfounded allegations. The University is likely to argue that it merely announced an investigation and commitment to deal with findings of violations. However, the tenor and language was read by the team as presupposing such racist violations, a view that certainly implied coverage.
One interesting aspect is that, even though team members are referred to as Jane Does, the action is not brought as a per quod defamation case. Slander is considered inherently damaging if it falls into one of a number of “per se” categories. Those traditional categories include allegations of criminal conduct, moral turpitude, and other highly damaging acts. There is a concept of per quod defamation where the identity of an individual or individuals is easily established by extrinsic facts. However, the complaint states that “the statements made by the Slander Defendants is so defamatory that referral to extrinsic material is unnecessary to determine their defamatory meaning and/or effect. As such, the Slander Defendants’ statements pertaining to the Softball Team are slander per se.”
There are 13 claims:
FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT
SECOND CAUSE OF ACTION FOR SLANDER
THIRD CAUSE OF ACTION FOR LIBEL
FOURTH CAUSE OF ACTION FOR FALSE LIGHT
FIFTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
SIXTH CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
SEVENTH CAUSE OF ACTION FOR NEGLIGENCE
EIGHTH CAUSE OF ACTION FOR VIOLATION OF TITLE IX
NINTH CAUSE OF ACTION FOR RETALIATION
TENTH CAUSE OF ACTION FOR HOSTILE WORK ENVIRONMENT
ELEVENTH CAUSE OF ACTION FOR CONSTRUCTIVE TERMINATION
TWELFTH CAUSE OF ACTION FOR VIOLATION OF LABOR CODE § 2699
THIRTEENTH CAUSE OF ACTION FOR VIOLATION OF BUSINESS AND PROFESSIONS CODE § 17200:
Here is the complaint: Day v. California Lutheran University complaint