Tommia Dean v. Neil Warren
USCA11 Case: 19-14674 Date Filed: 09/02/2021 (2021)
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Rule of Law:
A claim under 42 U.S.C. § 1985(3) requires a plaintiff to plausibly allege that the conspirators acted with invidiously discriminatory animus 'because of,' not merely 'in spite of,' the plaintiff's membership in a protected class. Opposition to a protest on a racial issue does not, by itself, constitute the required class-based animus if there are other common, non-racial reasons to oppose the protest.
Facts:
- Tommia Dean, an African American cheerleader at Kennesaw State University (KSU), kneeled with several of her teammates during the pre-game national anthem to protest police brutality against African Americans.
- After the first protest, Georgia state legislator Earl Ehrhart called a KSU athletic director and instructed him that the cheerleaders must be prohibited from kneeling during the anthem.
- Sheriff Neil Warren and legislator Ehrhart both communicated with KSU President Samuel Olens, pressuring him to stop the protests.
- President Olens assured both Ehrhart and Warren that the protests would not happen again.
- Subsequently, KSU officials implemented a new 'tunnel rule,' which required the cheerleading squad to remain in the stadium's tunnel and off the field during the national anthem.
- In text messages exchanged after the rule was implemented, Warren and Ehrhart took credit for the policy change, with Warren stating it was a recommendation they had given to Olens and Ehrhart thanking Warren for his 'patriotism.'
Procedural Posture:
- Tommia Dean sued Sheriff Neil Warren and others in the United States District Court for the Northern District of Georgia.
- Dean's complaint alleged that Warren conspired to deprive her of her constitutional rights in violation of 42 U.S.C. § 1985(3).
- Warren filed a motion to dismiss for failure to state a claim, arguing Dean had not plausibly alleged that he acted with the required racial or class-based animus.
- The district court granted Warren's motion and dismissed the § 1985(3) claim against him.
- Dean, the appellant, appealed the dismissal to the U.S. Court of Appeals for the Eleventh Circuit, where Warren was the appellee.
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Issue:
Does a complaint alleging that a public official conspired to suppress a protest against police brutality toward African Americans plausibly state a claim for class-based, invidiously discriminatory animus under 42 U.S.C. § 1985(3), where the official's motive may have been opposition to the protest itself rather than the race of the protestors?
Opinions:
Majority - Judge Jill Pryor
No, the complaint does not plausibly state a claim for class-based animus under § 1985(3). To succeed, a plaintiff must show a conspirator acted with 'invidiously discriminatory animus.' Dean's claim fails under three potential theories. First, her 'direct race-based theory'—that Warren acted because she is African American—lacks sufficient factual support; the facts suggest Warren was motivated by the protest's content, not the protestors' race. Second, her 'indirect race-based theory'—that Warren acted because she was protesting a racial issue—is foreclosed by Supreme Court precedent in Bray v. Alexandria Women's Health Clinic. Under Bray, opposing an activity associated with a protected class is not actionable animus if there are 'common and respectable reasons' for that opposition other than hatred for the class. Opposition to anthem kneeling for reasons of patriotism is such a reason. Third, her 'political class-based theory'—that she was targeted as a member of a political class of protestors—also fails under Bray, which held that a class cannot be defined simply by 'a group of individuals who share a desire to engage in conduct that the...defendant disfavors.'
Concurring - Chief Judge William Pryor
No, the claim fails for an alternative reason. A § 1985(3) claim requires an underlying violation of a constitutional right, but there was no First Amendment violation here. Dean's on-field, in-uniform conduct as a cheerleader for a public university constitutes government speech, not private speech. The government is not restricted by the Free Speech Clause when it controls its own speech. Applying the three-factor test for government speech (history, endorsement, and control), Kennesaw State University's cheerleading program is clearly government speech. Therefore, the university did not violate Dean's First Amendment rights by preventing her from kneeling, and without an underlying rights violation, her § 1985(3) conspiracy claim necessarily fails.
Concurring - Judge Jill Pryor
While concurring in the judgment, the legal test for class-based animus established in Bray v. Alexandria Women's Health Clinic is deeply problematic. The Bray framework forces courts to engage in inquiries unsuited for the judiciary, such as speculating whether an activity is 'predominantly' practiced by a protected class and making subjective judgments about whether reasons for opposing that activity are 'common and respectable.' This analysis requires judges to act as pollsters or philosophers, especially in controversial social issue cases. The § 1985(3) jurisprudence has gone 'awry' and merits re-examination by the Supreme Court.
Analysis:
This decision reinforces the high barrier for proving class-based animus under § 1985(3) as established in Bray, making it significantly more difficult for plaintiffs to bring conspiracy claims related to protests on racial issues. The ruling clarifies that a defendant's opposition to the form or message of a protest, even one focused on race, is legally distinct from animus against the protestors' race itself, especially if non-discriminatory motives like patriotism can be asserted. The alternative holding classifying student-athlete expression as government speech provides a powerful defense for public universities seeking to regulate the conduct of students acting as official representatives of the school.
