From Hening v. Adair, decided Friday by Judge Thomas Cullen (W.D. Va.):
Plaintiff Kiersten Hening, a former member of the Virginia Tech women's soccer team, filed this suit under 42 U.S.C. § 1983 against her former coach, Charles "Chugger" Adair. Specifically, Hening alleges that, after she refused to kneel in support of social-justice initiatives, including Black Lives Matter ("BLM"), prior to the team's 2020 season opener against the University of Virginia ("UVA"), Adair retaliated against her in violation of the First Amendment. According to Hening, as a direct result of her refusal to kneel while a "Unity Statement" was read over the loudspeakers, Adair berated her at halftime in front of her teammates, and again at a film-review session the following week, for "bitching and moaning" and "doing [her] own thing."
{On September 3, 2020, the Atlantic Coast Conference's ("ACC") Committee for Racial and Social Justice announced that, in addition to creating an ACC Unity Symbol and implementing mandatory "diversity and inclusion training for student-athletes" focused on "anti-racism," a Unity Statement would be read before every ACC event. This Unity Statement provided: "We, the ACC, are committed to seeing each other as equals, supporting each other, and treating each other with respect and dignity at all times, recognizing that our differences don't divide us, but they make us stronger." As this Unity Statement was read prior to the UVA game, all but three of the players and coaches from both teams kneeled in an apparent show of support. Hening and two of her teammates declined to kneel.}
Adair, on the other hand, claims that he was unaware until after the UVA game that Hening had declined to take a knee and that his vocal criticism of Hening at halftime and the following week—during which he never directly mentioned the Unity Statement or her refusal to kneel—was based solely on her poor play. Hening, who had been a major on-field contributor for two years prior to the 2020 season, also asserts that Adair removed her from the starting lineup for the next two games and drastically reduced her playing time in those games because she had engaged in this protected First Amendment activity. As a result, Hening resigned from the team after the third game of the season….
It is well-established that the First Amendment's protection of freedom of speech includes "both the right to speak freely and the right to refrain from speaking at all." As a necessary corollary to protect that fundamental right, the "right of free speech includes … the right to be free from retaliation by a public official for the exercise of that right." To establish a claim for First Amendment retaliation, Hening must put forth sufficient evidence that: (1) she engaged in protected First Amendment activity; (2) Adair took some action that adversely affected her First Amendment rights; and (3) there was a causal relationship between her protected activity and Adair's actions.
