A Kennesaw State University cheerleader who with four other members of her squad knelt during the national anthem at a football game last year has sued university and public officials, claiming the women were later banned from the field whenever “The Star-Spangled Banner” played.
Tommia Dean, now a KSU sophomore but no longer a KSU cheerleader, filed the civil rights lawsuit Sept. 5.
Dean claims her constitutional free speech rights were violated when she and other cheerleaders were barred from the field until after the anthem was played, effectively silencing the group. The ban was implemented after they took a knee in solidarity with former San Francisco 49ers quarterback Colin Kaepernick to protest police brutality.
President Donald Trump has repeatedly attacked protests by Kaepernick, who is now a free agent, and dozens of other NFL players who also have chosen to kneel during the national anthem. Trump has demanded that protesting players be fired, calling on NFL team owners to stop the practice and making his objections a centerpiece of many of his political rallies and tweets.
Dean’s suit alleges that a powerful Republican state legislator conspired with a Republican county sheriff to pressure KSU’s then-president, former state Attorney General Sam Olens, into taking action to stop the cheerleaders’ protest.
By allegedly attempting to squelch any future attempts by members of the squad, all of whom are African-American, to take a knee during the anthem, former state Rep. Earl Ehrhart, R- Powder Springs, and Cobb County Sheriff Neil Warren also violated the 1871 Ku Klux Klan Act, the suit alleges.
The law, passed during Reconstruction to curtail the Klan’s terrorist activities, established a legal cause of action against private individuals who engage in private conspiracies to violate citizens’ constitutional rights or exert pressure on public officials to do so.
Dean’s suit also claims that she and three fellow cheerleaders were prevented from kneeling at subsequent football games, even though Georgia Attorney General Chris Carr advised university officials that doing so would violate the cheerleaders’ First Amendment rights.
Ehrhart served as the House Republican whip, as Rules Committee chairman and chairman of the higher education appropriations subcommittee before retiring last year to become CEO of a lobbying firm associated with Taylor English Duma.
The suit also names KSU’s then-interim athletic director Matt Green and senior associate athletic director Scott Whitlock as defendants.
Dean and two other cheerleaders who protested were not selected for the squad this season, said Dean’s attorney, Bruce Brown. He said he doesn’t know whether retaliation over their protest last year was a factor.
“The right of students to peacefully protest has been a well-established constitutional right for decades,” said Brown, who serves as co-counsel with Atlanta attorney Randy Mayer of Mayer & Harper. Carr’s advice to permit the cheerleaders to protest unless they were disruptive “confirms how well-established our client’s constitutional rights were,” the lawyer said.
Carr’s spokeswoman was away and couldn’t be reached for comment. Olens, now a partner at Dentons in Atlanta. Whitlock declined to comment, saying KSU policy prevented him from doing so. Warren’s spokesman declined to comment on the suit.
Earl Ehrhart’s attorney, Jonathan Crumly of Atlanta’s Taylor English Duma, said he and Ehrhart are aware of the suit and look forward to vindicating Ehrhart.
“Rep. Ehrhart was not present when the protests first occurred and only acted in response to numerous complaints from his constituents, who asked that he relay their concerns to those in positions of authority,” Crumly said. “Rep. Ehrhart did not act in response to the race of anyone.”
Dean and other KSU cheerleaders decided last year to take a knee because KSU football players typically remained in the locker room until after the anthem is played. The cheerleaders were traditionally on the field during the anthem, the suit said. Aware that other college cheerleaders had begun kneeling during the anthem, “after pray and discussion,” they decided to follow suit.
The cheerleaders first knelt at KSU’s second home game on Sept. 30, 2017. Olens was not at the game, according to the suit. But when he later learned of the protest, he emailed the vice president of student affairs to express his concern and directed her to meet with the protesters, the suit contends.
Within days of the protest, Ehrhart called Olens and the athletic department to demand the cheerleaders stop their demonstrations or be booted off the squad, Dean’s suit said. “Olens assured Ehrhart that the cheerleaders at KSU would not again be kneeling during the national anthem,” the suit alleged.
On Oct. 2, 2017, the county sheriff also called Olens to object to the cheerleaders’ protest. Two days later, according to the suit, KSU athletic officials met and decided that at the next home game the cheerleaders would not be allowed on the field during the national anthem.
KSU athletic officials later denied that their decision to keep the cheerleaders off the field was not related to their protest but instead was done to “alleviate a two-minute gap in the pregame music,” according to the suit.
But a report on the protest written for the Board of Regents called that explanation into question, the suit contends.
“The only purpose of making the change was to appease defendants Ehrhart and Warren,” the suit contends. “At no prior home football game in KSU’s history had cheerleaders not been on the field during the playing of the national anthem.”
In an exchange of text messages, Warren and Ehrhart later took credit for keeping the cheerleaders off the field, according to the suit.
“Not letting the cheerleaders come out on the field until after national anthem was one of the recommendations that Earl [Ehrhart] and I gave him [Olens]!” Warren wrote, according to the suit.
In a text to Warren, Ehrhart replied: “He [Olens] had to be dragged there, but with you and I pushing he had no choice. Thanks for your patriotism my friend,” Dean’s suit alleged.