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Federal judge rebuffs Defendants' efforts to dismiss Kent State softball player's Title IX- and First Amendment-retaliation suit

Wednesday, March 15, 2017

Judge: “While a university coach may enjoy substantial discretion in making staffing decisions on her team, such discretion does not extend to retaliating against a student-athlete because she has exercised her First Amendment rights.”

Lauren Kesterson

Akron, OH — A federal judge today rejected an attempt by a former Kent State University softball coach to avoid accountability for retaliating against a player who had reported that the coach’s son had raped her.

The case began after our client, Lauren Kesterson, reported to her coach that she had been raped. Ms. Linder correctly guessed that the rapist was her son Tucker Linder, and then instructed Ms. Kesterson to tell no one. The complaint alleges that although Ms. Kesterson complied, Ms. Linder began a campaign of retaliation against her. Ms. Kesterson eventually reported Ms. Linder to the university, but it refused to perform a routine Title IX investigation and continued the retaliation.

As a government institution, Kent State University is prohibited from singling out students for harassment or fostering a hostile environment, so Ms. Kesterson is now bringing claims of sex discrimination, denial of equal protection, and First Amendment retaliation.

Ms. Linder sought to have those claims thrown out, arguing that “there is no one-size-fits-all approach to be followed” when a coach learns that one of her students has been raped. She said she had to consider whether the report was credible (it was), whether the student had asked for help (she had), and whether the student was able to identify her attacker (she was).

Judge Sara Lioi rejected that argument, based on the laws and university regulations cited in Ms. Kesterson’s complaint: “The relevant college policies require an administrator to report all instances of sexual harassment…. The discretionary questions Linder posed in her motion have no role in an administrator’s duty to promptly report all instances of sexual assault.”

Ms. Linder also argued that as a university employee, she should enjoy “discretion” to decide how to deal with her job responsibilities. But again, Judge Lioi shut this argument down: “While a university coach may enjoy substantial discretion in making staffing decisions on her team, such discretion does not extend to retaliating against a student-athlete because she has exercised her First Amendment rights,” the judge said.

Judge Lioi also rejected a separate motion from Kent State, which wanted the record purged of any mention that it had refused to discipline another Athletic Department employee who had sexually harassed a co-worker.

The University complained that Ms. Kesterson was just trying to “smear” its reputation, but Judge Lioi said the material should remain in the record because it helps “to show that Kent State ‘has a custom, policy, or practice of coddling perpetrators of sexual harassment.’”

The case moves forward. The Court's order and opinion denying Defendants' various motions to dismiss is here:

2017-03-15 #34 Memorandum Opinion re motion dismiss, mot strike, mot amend.pdf

Related Practice Areas
First AmendmentGovernment ethics, misconduct, fraud, & abuseSexual harassmentTitle IX
Tags
sexual-assaultrapefirst-amendmenttitle-ix-retaliationtitle-ixfirst-amendment-retaliationkent-state-universitykaren-lindersexual-harassmentlauren-kestersontucker-linder

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