Credit: WoodysPhotos/Shutterstock.com (Photo: WoodysPhotos/Shutterstock.com)

A federal judge has dismissed a state legislator and a county sheriff as defendants in a suit filed by a former Kennesaw State University cheerleader who contended she was removed from the squad after kneeling during the national anthem at a 2017 has football game.

But Judge Timothy Batten of the U.S. District Court for the Northern District of Georgia has so far left intact claims by former KSU cheerleader Tommia Dean against former KSU President Sam Olens, who was also the state’s former attorney general and is now a Dentons partner in Atlanta, and members of the university athletics department.  The KSU defendants have not asked the court to dismiss the claims against them. 

Dean claimed her constitutional free speech rights were violated when she and other cheerleaders were barred from the field until after the national anthem was played, effectively silencing the group. Dean was not invited to rejoin the squad the following year. Four other cheerleaders who knelt with her had already graduated.

The ban was implemented after the cheerleaders knelt in solidarity with former San Francisco 49ers quarterback Colin Kaepernick to protest police brutality. The suit alleged that Earl Ehrhart, then a powerful Republican state legislator who is now CEO of the lobbying arm of Atlanta law firm Taylor English Duma, and Cobb County Sheriff Neil Warren conspired to pressure Olens into taking action to forestall any more public protests.

Dean’s counsel, Bruce Brown, had contended in the suit that Ehrhart and Warrant engaged in a conspiracy driven by racial and political animus to deprive Dean of her civil rights in violation of the federal Ku Klux Klan Act of 1871.

But Batten ruled the defendants’ conduct in trying to shut down the public protests “was not so invidious as to lump it together with the odium of racism prevalent during the post-Civil War era and thus subject them to liability” under federal civil rights statutes. “[The]defendants’ conduct bears little resemblance to conspiratorial persecution on the basis of immutable characteristics by the KKK,” the judge concluded.

In dismissing Dean’s racial animus claims, Batten held that the “mere fact” a plaintiff is black “is insufficient to support an inference of racial motivation.” The judge also embraced the defendants’ contention that their objections to the kneeling cheerleaders was “non-racial and cuts against Dean’s contention that [the] defendants were motivated based on her race.”

Instead, Batten suggested the defendants’ complaints and efforts to bar cheerleaders from kneeling during the national anthem were “at least in their view, patriotic.”

“Dean’s complaint demonstrates that defendants [Ehrhart and Warren] acted in spite of, rather than because of, Dean’s race—or the race-based issues she was protesting,” the judge wrote. “Without a greater causal connection between race and [the] defendants’ actions, Dean’s contention must be rejected.”

And, the judge added, “A non-black person may participate, protest, and sympathize with Dean’s cause—indeed, police brutality affecting a class of Americans troubles Americans across the ethnic spectrum.”

The judge also gave short shrift to Dean’s argument that she suffered discrimination by the sheriff and Ehrhart because of her political class. Batten called such a class “indeterminate” and suggesting that, “It could include any number of persons who sympathize with victims of police brutality, or affiliate with the Black Lives Matter movement.”

Ehrhart and Warren  “were exercising their own First Amendment rights when they spoke their minds to the KSU administration about their opposition to Dean’s protest,” Batten said. “And their only discernible motive was their view that the flag and the anthem should be respected, and that what Dean and the other cheerleaders were doing was, in their mind, disrespectful.”

On Thursday, Warren applauded the ruling. “Everyone as an American citizen does have the right to protest for what they believe in but we also have the right to disagree and stand up for what we believe in,” the sheriff said.

Dean’s counsel, Brown, said Batten’s ruling “raises a number of potentially appealable issues which we may need to address after trying the case against the KSU defendants.”

Olens could not be reached. But Olens’ counsel, Richard Gignilliat of Atlanta’s Elarbee Thompson Sapp & Wilson, called Batten’s ruling “encouraging,” even though Olens and the other KSU defendants were not accused of any Klan Act violations. He said Olens’ legal team is “still assessing” the ruling.

Read the decision

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