GARY CHESTER

High school sports in major college towns are often overshadowed by name-brand teams such as the Penn State Nittany Lions of State College, Pennsylvania. But an unusual move by the State College Area School District may have vaulted interscholastic sports into the spotlight, at least in the Pennsylvania courts.

The district created a co-ed club hockey team that would seem to comply with Title IX requirements. But when a middle-school girls hockey team disbanded, none of the 19 girls who tried out for the co-ed team made the cut, raising suspicions about the co-ed nature of an all-male team. In response, the girls’ parents offered to organize and manage a girls team, but the district and the boosters for the club team allegedly refused to cooperate.

The parents of three disappointed female skaters filed a complaint against the district on August 23, 2022, alleging violations of Title IX and the Equal Protection Clause, and negligent hiring, training, supervision, and retention of the Title IX coordinator and the head coach. The case, Brooks v. State College Area School District, 4:22-cv-01335 (M.D. Pa. 2022), was assigned to District Judge Matthew W. Brann, who decided the plaintiffs’ application for a preliminary injunction in December of 2022.

The Parents File a Title IX Grievance

When the local rink discontinued the girls’ ice hockey team in early 2022, the plaintiffs notified the District Ice Hockey Club (“IHC”), a parent-run booster club organized to work with the district to facilitate the district’s ice hockey clubs at various levels (middle school, junior varsity, varsity). On May 17, 2022, the plaintiffs informed the district (via IHC) that they had sufficient students, coaches, and ice time to form a second club team. The district rejected the request. When the plaintiffs expressed their concerns about discrimination against female hockey players, the superintendent allegedly said the issue was in the hands of the IHC.

The plaintiffs filed a Title IX grievance with Linda Pierce, the District’s Title IX coordinator. While the matter was pending, the district added a high school junior varsity team to accommodate boys who did not make the high school varsity team.

The Title IX investigation concluded that the district failed to meet two of the three prongs of the applicable Title IX analysis set forth in Cohen v. Brown University, 879 F. Supp. 185 (D.R.I. 1995). The district did not meet substantial proportionality and did not have a history of expanding sports participation opportunities for girls; however, the investigation concluded that the district fully and effectively accommodated the athletic interest of girls enrolled in the school.

Did the District Violate Title IX?

The court considered the third requirement of Cohen concerning accommodation of student-athlete interests, and the Office of Civil Rights (OCR) standards or questions for determining whether an institution has met the interest of female student-athletes. The OCR first asks if there exists an unmet interest in a sport. The district argued that the female athletes’ interests were met when they were allowed to try out for the ice hockey team. The plaintiffs claimed that since none of the girls who tried out for the middle-school co-ed hockey team made the roster, they were never afforded a genuine opportunity.

Judge Brann opined: “Merely allowing female athletes to show up for co-ed tryouts is not enough to satisfy Title IX.” He added that the plaintiffs correctly noted that the Third Circuit has held that “athletic opportunities means real opportunities, not illusory ones.” In addition, there was no evidence that the district tried to accommodate the girls by allowing them to practice with the team, or fill “alternate” spots, or conduct workshops to improve their skills.

The second OCR question is whether there is “sufficient ability to sustain a team in the sport.” The court stated that the district cannot simultaneously state that it supports creating a second co-ed middle school team to accommodate female students, while taking no action when female students ask it to create a team. Creating a second team for junior varsity boys was strong evidence that the district was capable of creating additional teams.

The third OCR question asks, “Is there a reasonable expectation of competition for the team?” The court found no evidence that a second co-ed middle school ice hockey team would be unable to compete in the existing club hockey league in which the current middle school ice hockey team competes.

In considering a request for a preliminary injunction, the Third Circuit has established four factors: (1) reasonable probability of success on the merits; (2) likelihood of irreparable harm if the relief is denied; (3) whether granting the relief will result in even greater harm to the nonmoving party; and (4) whether granting the relief is in the public interest.

Having found that the district was in violation of Title IX and the plaintiffs would likely succeed on the merits, the court proceeded to decide the next three requirements for preliminary relief. Judge Brann opined that the plaintiffs would suffer irreparable harm without an injunction because every missed opportunity to play hockey would cause them to fall behind in their athletic development and prevent them from competing at higher levels, including college.

In balancing the equities, the court stated that the district presented no evidence of harm from injunctive relief that would outweigh the harm to the plaintiffs. Finally, Judge Brann found that an injunction promoting compliance with Title IX would serve the public interest, and protecting civil rights is “a purpose that is always in the public interest.”

The Court Grants Relief

On December 1, 2022, the court issued a preliminary injunction in favor of the plaintiffs who simply wanted to play middle-school ice hockey in an organized league. Judge Brann quoted National Hockey League great Wayne Gretzky, who famously said, “You miss 100% of the shots you don’t take.” Gretzky’s observation assumes that everyone has the chance to play the sport, which was not the case in State College.

The court expressed regret that the matter required judicial intervention and encouraged the parties to work towards an amicable resolution. Judge Brann showed restraint in his opinion, in view of what was obviously a sham try-out in a transparent attempt to do an end run around Title IX. With the nationally ranked Penn State women’s hockey team playing in the same area, one would think the district would try to develop homegrown talent for the Nittany Lions’ roster, which consists of 21 student-athletes from outside Pennsylvania. Yet, more than 14 months post-injunction, the litigation continues.

[This article originally appeared in the Sports Litigation Alert newsletter, where Mr. Chester serves as Senior Writer. It is reproduced with permission.]

The University of Arizona Athletic Department has had its share of problems. In 2017, the University fired its head football coach, Rich Rodriguez, after a former administrative assistant accused him of sexual harassment. In 2019, a men’s basketball assistant coach pleaded guilty to bribery, and in 2021 the NCAA cited the program for academic misconduct. In June, the Ninth Circuit Court of Appeals held that the University unlawfully removed a track and field athlete from the team in retaliation for filing a Title IX complaint.

But the University’s biggest embarrassment might result from defending the explosive charges brought by a former coach in a racketeering (RICO) lawsuit filed on September 1, 2023. The allegations set forth in Aych v. University of Arizona, et al., No. 2:23-cv-07282 (C.D. Cal. 2023) read as if Robert Ludlum (The Bourne Identity) had taken an interest in college sports.

THE ALLEGED FACTS

The Wildcats replaced Rodriguez in 2018 with Kevin Sumlin, who had been successful at Houston and Texas A&M. But Sumlin’s brand of football never caught on in Tucson, and Athletic Director Dave Heeke fired him just five games into the 2020 season amidst a 12-game losing streak. “When we hired Kevin three years ago, we had very high hopes for our football program,” Heeke said in a statement. “Unfortunately, we simply have not seen the results…”

On the surface, it looked as if Arizona had simply fired an unsuccessful head football coach. But the Complaint filed by former assistant coach Theron Aych lays out an evil conspiracy in which Sumlin and his staff were destroyed from within.

Aych coached the Arizona wide receivers and tight ends from 2017 to 2020. Rodriguez hired Aych and Sumlin kept him on, but Arizona fired Sumlin’s staff after the 2020 season. The Complaint alleges that Heeke became disgruntled with Sumlin and sabotaged the program so he could justify firing Sumlin and installing his friend, Jedd Fisch.

The most damning allegation is set forth in Paragraphs 2 and 3 of the Complaint: “In an effort to terminate the entire coaching staff under the pretense of ineffective coaching, U of A purposely transferred and released Coach Sumlin’s private football playbook to opposing college football teams from other NCAA and Pac-12 institutions…U of A gave competitors access to Coach Sumlin’s private playbook in an effort to compromise the credibility [of] U of A coaches and/or make its coaches look bad during games.”

THE ALLEGED EVIDENCE OF AN UNLAWFUL SCHEME

Aych alleges that the following defendants participated actively or passively in Heeke’s plan to oust Sumlin and his staff: the University of Arizona, the Arizona Board of Regents, the NCAA, UCLA and the University of California Board of Regents, the NCAA, the Pac-12 Conference, Heeke, Fisch, and Jimmie Dougherty, an assistant hired by Fisch.

The Complaint states that:

• Arizona hired Fisch only 11 days after terminating the entire football staff, a surprisingly short time.
• Heeke hired Fisch even though Fisch never played college football and had no prior head coaching experience.
• Upon his hiring, Fisch immediately announced that Dougherty would be his lead assistant; Dougherty had been coaching with Fisch at UCLA and the two also coached together at the University of Michigan.
• In his first day on the job, Dougherty handed his thumb drive to an assistant, John Marinelli, and asked him to remove UCLA logos; the thumb drive contained the University of Arizona’s playbook and other documents that had been accessible only via the University’s confidential, secure server.
• Marinelli (currently an assistant at the University of Connecticut), shared his findings with others on the staff and provided an affidavit.
• Plays had been stolen internally, distributed to Pac-12 and NCAA rivals, and used against Head Coach Sumlin’s team “possibly from the inception of his tenure until he was terminated in 2020.”
• The NCAA “collusively” allowed the release of Sumlin’s playbook to the detriment of Aych’s professional reputation and credibility as a football coach.

LEGAL THEORIES

The Complaint contains seven causes of action. Count One alleges racial discrimination by the NCAA and the Pac-12 in violation of 42 U.S.C. § 1981, based on their permitting unfair competition amongst schools to diminish the professional reputation of Aych and other black football coaches. The Complaint notes that only 14 of the 129 Football Subdivision Schools have black head coaches.

Count Two alleges that Heeke, Fisch, and Dougherty violated Section 1962c of the Racketeer Influenced and Corrupt Organizations Act (RICO – 18 U.S.C.  §§ 1961-1968) by engaging in a common scheme to release and transfer Coach Sumlin’s playbook for the unlawful purpose of “intentionally conspiring to defraud and misrepresent Coach Aych of his benefits and rights.”

Count Three alleges that Heeke, Fisch, and Dougherty conspired to create illegal restraints on competition in contravention of the Sherman Antitrust Act.

Count Four alleges that the conduct of the University, the Arizona Board of Regents, and the California Board of Regents amounted to intentional interference with economic advantage because the sharing of the team’s proprietary materials disrupted Aych’s ability to market himself as a highly valued football coach. Count Five pleads negligent interference with prospective economic advantage and Count Six alleges common law fraud against these same three defendants.

Count Seven alleges that the University and the Arizona Board of Regents defamed Aych through conduct, which is rarely a basis for defamation. Aych alleges that the defendants’ actions “negatively harmed Coach Aych’s reputation by putting his character, work ethic and ability to successfully coach into question…” and terminating him under the guise of a “poor season.”

WHAT’S NEXT?

If the factual allegations are accurate, then the case may prove a damning indictment of college football and the institutions that used Arizona’s playbook. The case could serve as a catalyst for an FBI investigation for several reasons, including that sports betting was legal when the games in question were played.

It would be fascinating to discover if Arizona’s playbook was sent to Dougherty before Arizona hired him away from UCLA and whether there is evidence showing that the playbook was distributed to other rivals.

Even if the basic facts are proven, some of the legal theories appear to rely on tenuous inferences. For instance, is there more substance to the racial discrimination claim than is set forth in the complaint? Is there evidence that the NCAA had knowledge of the stolen playbook? Also, blaming coaches for a “poor season” would appear to be an opinion that cannot serve as the basis for a defamation claim.

Finally, UCLA is a named defendant but is not identified as an applicable party in any of the seven counts in the Complaint. It is likely that UCLA and the other defendants will bring a motion to dismiss the Complaint for failure to state a claim upon which relief can be granted under Rule 12 (b) (6) of the Federal Rules of Civil Procedure.

The Complaint was filed by attorney Jonathan Weiss of Los Angeles and by anticipated pro hac vice counsel, Alfonso Kennard, Jr. and Eddie Hodges, Jr. of Houston.

WHERE ARE THEY NOW?

Sumlin landed at Maryland as the co-offensive coordinator, while Aych served as the offensive coordinator at UTEP before taking the same position at Tennessee State University in 2022. Fisch has Arizona off to a 3-1 start after finishing 1-11 in 2021 and 5-7 last year.  Although Fisch had little or no head coaching experience, he was an all-state tennis player at Hanover Park (N.J.) High School who earned a master’s degree in sports management at the University of Florida where he served as a graduate assistant under Head Coach Steve Spurrier.

Fisch had assistant coaching stints with seven NFL clubs and six college teams before signing with Arizona for a reported $2.6 million per year over five years. His base pay in the first two years was higher than Sumlin’s had been with the Wildcats.

The allegations are remarkable but not unprecedented. In Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), the University of Georgia Athletic Director Wally Butts and the famed Alabama Coach Paul “Bear” Bryant sued the Saturday Evening Post for defamation after it reported that Butts gave Georgia’s game plan to Alabama prior to their 1962 contest. The story was that Butts was a beloved Georgia head coach who was pushed out of the job and wanted to torpedo his successor. Alabama won the game, 35-0, and Bryant won a $300,000 settlement from the Post’s parent company. Butts was awarded $3.06 million at trial, which was reduced to $460,000. The payments contributed to the demise of the Post two years later.

If the case proceeds beyond the likely motion to dismiss, full discovery of the facts should be intriguing. And extremely embarrassing either to college football or to Coach Aych.

[This article was originally published in the Sports Litigation Alert, where Gary serves as senior writer. It is reproduced with permission.]

UCLA’s John Wooden may have been the greatest college coach ever because he won championships and taught his players solid values. The second accomplishment is all too rare in an era of sore losers and sore winners.

In 2019, Bronson McClelland was the captain and the quarterback for Katy High School (KHS) in Texas. After leading his team to a 35-30 victory over crosstown rival Tompkins High, McClelland and other students gathered at a local burger joint to savor the win – and to taunt students from Tompkins.

The end result was McClelland creating a racist video that went viral and got him suspended. McClelland challenged the suspension in a lawsuit in which the U.S Court of Appeals for the Fifth Circuit considered the unsettled issue of the rights of students to criticize their schools while they are off campus. (McClelland v. Katy Independent School District, 2023 U.S. App. LEXIS 7716 (March 31, 2023)).

The QB Posts an Ugly Video – and is Sacked

While eating at a local Whataburger restaurant, McClelland, Jose Hernandez (a student at Tompkins High School but not on the football team), and other students taunted each other in person and digitally via the Snapchat social media platform. While outside the restaurant, McClelland recorded and sent a three-second video to Hernandez via Snapchat wherein McClelland stated, “[We’ll] put your mother[]cking ass in the hospital, n[]gga’. What the f[]ck.”

Hernandez recorded the video on his phone and sent it to several friends, including Tunmise Adeleye, a Black student who was a football player at Tompkins. Adeleye posted the video to his personal Twitter page, making it allegedly appear that he received it directly from McClelland. The video quickly circulated and began attracting media attention.

The next day, McClelland and his parents met with Rick Hull, KHS’s Principal, and Gary Joseph, the KHS football coach, who suspended him for two games and stripped him of his captain position. McClelland promptly posted an apology on his personal Twitter account, explaining that he had been suspended for two games and stripped of his captain position.

Within hours of this post, Hull and Joseph contacted McClelland’s father and demanded that McClelland remove the apology because they did not want it to appear that the Katy Independent School District (KISD) had rushed its investigation. KISD released its own statement, explaining that “a KHS student-athlete posted a video of himself on social media in which he used racially charged language to taunt a student-athlete on the opposing team” and that he will face disciplinary consequences.

McClelland alleged that KISD promoted the false narrative that he was a racist because they knew he had not sent the video directly to Adeleye. McClelland also alleged that Joseph had tolerated the use of the N-word but renounced his policy at a team meeting a few days after the incident.

For almost a year, McClelland and KISD corresponded to try to resolve the fallout from the allegedly false statement. McClelland informed the district that he would pursue legal remedies if the matter remained unresolved after September 18, 2020. On September 17, 2020, a canine unit with the local police department identified McClelland’s car in an allegedly random search of the KHS parking lot. Police officer Stephanie Fulgencio found .04 grams of a leafy green substance on the rear floor mat of the car, and Assistant Principal Ashley Darnell charged McClelland with possession of marijuana under the Texas Health & Safety Code – even though the substance had not been tested.

Three days later, Fulgencio confirmed that the substance was marijuana. McClelland was suspended for three days and placed in the Disciplinary Alternative Education Program (DAEP) for 45 days. McClelland alleged that the authorities had failed to test the marijuana to discover its potency, which is required to establish that it exceeded the legal threshold for marijuana.

The QB Goes to Court

After a failed attempt to transfer to and play for another high school, McClelland sued Forensic Laboratory, KHS, the KISD Police Department, the KISD Board of Trustees, and several individual employees. He alleged several violations of 42 U.S.C. Sec. 1983, including deprivation of First Amendment and due process rights. The action was filed in state court but was removed to the Southern District of Texas.

The defendants filed motions to dismiss under Rule 12(b), which the trial court granted on the basis of qualified immunity. McClelland appealed to the Fifth Circuit.

McClelland contended that the district court erred by dismissing his free-speech related claims under Sec. 1983 because (1) Hull’s regulation of his off-campus speech was unconstitutional, (2) his free-speech rights were clearly established, and (3) he sufficiently pleaded a connection between the policymaker (the KISD Board) and the allegedly unconstitutional policy as required by Monell v. Dept. of Social Services, 436 U.S. 658 (1978).

In the Fifth Circuit’s opinion, Judge Jacques L. Wiener, Jr. wrote that a Sec. 1983 plaintiff must show a violation of the Constitution or of federal law, and then show that the violation was committed by one acting under color of state law. The decision recognized that qualified immunity protects government officials from civil liability only when they could reasonably believe their actions were legal. To overcome this defense, a plaintiff must demonstrate that the official violated a clearly established statutory or constitutional right.

Since the U.S. Supreme Court has never set forth a bright-line rule for regulating off-campus speech, much of Judge Wiener’s analysis considered whether the school principal, Hunt, could have reasonably known that he was infringing on an established constitutional right.

The court’s analysis started with Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969), a seminal free speech case in which the Court protected the right of students who wore black armbands to class in protest of the Vietnam War. The Court famously declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court also recognized the right may be limited where a student’s speech substantially disrupts school activities.

The Fifth Circuit considered several off-campus speech cases, including Mahanoy Area School District v. B.L. ex rel Levy, 141 S. Ct. 2038 (2021), where the Court held that a disgruntled cheerleader’s off-campus Snapchat posts, which stated “F[]ck school f[]ck softball f[]ck cheer f[]ck everything,” were constitutionally-protected speech. But the decision left “for future cases to decide” the parameters of protected off-campus speech.

The QB is Sacked (Again)

While courts do not require a case directly on point to establish qualified immunity, Judge Wiener observed that school officials are entitled to qualified immunity unless “existing precedent…placed the statutory or constitutional question beyond debate.”

The Fifth Circuit ruled that the trial court was correct in finding that Hull was entitled to qualified immunity because neither the Supreme Court nor the Fifth Circuit had clearly defined the limits of off-campus speech. The KHS Principal was not placed on notice that disciplining McClelland for his off-campus speech was unconstitutional.

The court also found that McClelland had abandoned his First Amendment retaliation and compelled speech claims because they were never briefed. Similarly, the court rejected McClelland’s claim that the KISD Board is vicariously liable for the acts of its employees because he did not allege that the Board promulgated a policy that caused injury, as Monell v. Dept. of Social Services requires.

          The due process claim was also dismissed because the law recognizes participation in interscholastic sports as “a mere expectation” rather than a constitutionally protected right.

The Takeaway

In this pervasive social media era, parents need to caution students who participate in scholastic sports and other extracurricular activities that these are privileges and not rights, and that when they post highly offensive statements their free speech rights may only go so far.

[Mr. Chester’s article first appeared in the Sports Litigation Alert, the premier publication for sports law news. It is republished here with permission.]

The term ”NIMBY” was first used in a 1980 Virginia newspaper article by Emilie Travel Livezey who was describing opponents of hazardous waste material sites such as landfills. The acronym for “not in my backyard” applies to community resistance to unwanted development in residential neighborhoods. It is normally reserved for objections to power plants, apartment complexes, wind turbines, and similar uses of land.

Add sports facilities to the list. In the progressive college town (and state capital) of Madison, Wisconsin, some vocal neighbors vehemently opposed the installation of stadium lights for night football games at a Catholic high school. Amidst community opposition, the city denied the school’s application to install lights at its field.

Was this a typical NIMBY case or was there something more sinister afoot?

In Edgewood High Sch. of the Sacred Heart v. City of Madison, 2022 U.S. Dist. LEXIS 233570 (W.D. Wis. 2022), the court dealt with the issue of whether the municipality’s conduct constituted religious discrimination.

THE ROAD TO LITIGATION

Edgewood High School was founded in Madison in 1881. It is a private Catholic school in the Sinsinawa Dominican tradition. In 2011, the city created special districts for campuses and invited educational institutions to submit master plans outlining future development. In 2014, Edgewood and UW voluntarily submitted their plans to the city.

In 2018, Edgewood decided to upgrade its athletic field to include seating, lighting, restrooms, and concessions, but the city said its master plan strictly prohibited “athletic contests.” The zoning administrator in 2019 cited Edgewood for a violation of zoning ordinances by holding girls’ soccer contests on the field.

Edgewood appealed to the zoning board. The board denied the appeal even though UW had arguably used its property for purposes not disclosed in its master plan and had never been cited for a violation.

Nevertheless, Edgewood did not amend its master plan to include athletic competition. Instead, the school applied for a lighting permit under a municipal ordinance. The city refused to issue the permit because the lights could be used for prohibited athletic contests.

Edgewood then filed a request to repeal its master plan, a move that would put it on equal footing with other schools and enable it to install lighting. But before considering Edgewood’s application, the city enacted a new outdoor lighting ordinance that would make it more difficult to install lighting. 

The plaintiff filed a conditional use application (for permission to install lights) in 2020 that the building department approved but the municipal plan commission denied. The city common council upheld the denial in 2021. In viewing the landscape, Edgewood believed the city was treating it differently from public institutions.

DID UW RECEIVE PREFERENTIAL TREATMENT?

On May 3, 2022, Edgewood brought suit against the city and related entities/persons. Edgewood claimed that the defendants violated federal and state laws and infringed on its First Amendment right to freely exercise its faith. The defendants filed a motion for summary judgment requesting Judge William M. Conley to dismiss the case. Judge Conley ruled on December 30, 2022.

The court said that a key reason for creating special districts was to “[b]alance the ability of major institutions to change…with the need to protect the livability and vitality of adjacent neighborhoods…” Judge Conley observed that Edgewood’s master plan proposed 22 new projects but did not include a proposal for improvements to a new athletic field.

Edgewood played its home football games off-campus at Breese Stevens Field, which is also the homefield for Madison East High School, a public institution. After receiving a million-dollar grant from a private donor, Edgewood sought to install lights at its field and upgrade the track surrounding the field. Its neighbors expressed opposition to putting lights on the field; this opposition dates back to at least 1996. Edgewood was permitted to resurface the track because it could be classified as maintenance and repair.

In denying Edgewood a permit to install lighting, the city considered evidence from nearby homeowners suggesting that lighting would have a “substantial negative impact on the uses, values, and enjoyment of surrounding properties” and that Edgewood had produced no evidence to the contrary.

The Religious Land Use and Institutionalized Persons Act (RLUIPA) prohibits city ordinances or zoning rules from treating religious land uses worse than secular land uses. Edgewood argued that the city was wrong to interpret its master plan as precluding all athletic contests because it was permitted to conduct practices and physical education classes. The court basically said that Edgewood missed the key point that outdoor lighting was never identified as a future project in Edgewood’s master plan.

The court also rejected Edgewood’s argument that the city had treated UW, a pubic institution more favorably because it allowed the university to install lights at its tennis stadium in 2018. Judge Conley saw this as an apples-and-oranges comparison because UW applied prior to submitting its master plan while Edgewood applied after submitting its master plan.

The court said that the different set of facts “compels the conclusion that there was no unequal treatment.”

DID A PUBLIC HIGH SCHOOL RECEIVE PREFERENTIAL TREATMENT?

Edgewood argued that the city treated it worse than a public high school, Vel Phillips Memorial, because the city permitted Memorial to install lighting on its field. The court found that the circumstances were not comparable because Memorial did not submit a master plan and was not subject to those zoning rules. Moreover, Memorial had replaced existing lighting which constitutes maintenance and repair.

Moreover, even if the UW and Memorial situations were comparable to Edgewood’s, the city had demonstrated “overwhelming evidence of permissible reasons for treating plaintiff’s proposed lighting project differently” in view of proximity to neighbors and the lighting, noise, and crowd concerns surrounding high school football games.

THE COURT DOES NOT SEE THE LIGHT(S)

Edgewood also argued that the city has substantially burdened its religious exercise, which is a hot-button culture wars issue these days. Judge Conley astutely recognized that conducting athletic events is not an inherent element of faith, and that requiring a school to travel to an off-campus facility for games is not a substantial burden.

The court stated that it “cannot conceptualize how Edgewood’s religious exercise is seriously violated simply because it must schedule night games just a 15-minute drive east of its campus. In fact, the school has barely supported its assertion that playing any sports games at night is important to Edgewood’s sincere religious beliefs.”

Judge Conley treaded carefully in denying Edgewood’s claims under state law, abiding the rule that a court should not substitute its judgment for that of decision-making bodies where there is substantial evidence to support their decisions.

Here, the city’s plan commission considered Edgewood’s application for nearly five hours and the city common council considered evidence for nearly four hours. Neighbors testified and studies were presented to show that noise levels from Edgewood were already excessive and additional noise and lighting would negatively impact property values. Edgewood’s own sound study found that nighttime noise levels would exceed 70 decibels.

In granting summary judgment to all defendants, the court stated, “The Council further noted that Edgewood might not comply with suggested limits and had been dishonest with neighbors…All of this constitutes substantial evidence sufficient to support the Council’s ultimate decision on appeal.”

THE TAKEAWAY

*What appears on the surface to be religious discrimination may be something completely different.

*If you can’t fight city hall, then you certainly can’t fight city hall and your NIMBY neighbors.

[This story first appeared in the Sports Litigation Alert, the leading online sports law publication, and is reproduced with its permission.]

Fox News has been exposed. Documents obtained in the Dominion Voting Systems defamation case against Fox in Delaware Superior Court validate what Fox’s detractors have long claimed: the organization is a propaganda arm of the Republican Party.

Emails and texts among Fox executives and employees, including Rupert Murdoch, Sean Hannity, Laura Ingraham, and Tucker Carlson revealed that Fox relentlessly pushed claims that Dominion rigged the 2020 election even though Fox personnel knew the narrative was false.

Progressives are giddy over the prospect that Dominion could obtain a billion-dollar verdict that might bankrupt Fox. Yet the trial scheduled for April 23 has much broader implications than just crippling Fox News: a jury of twelve ordinary citizens may help decide the future of American democracy.

Facts are the Lifeblood of a Fully Functioning Democracy

Facts are essential to a healthy democracy. Before the Left and the Right can debate critical issues, they need to agree on the basic facts.

“The framers said misinformation should be prosecuted because democracy depends on debating accurate facts,” said Gina Baleria, a journalism professor at Sonoma State University and author of the textbook, Writing and Reporting News for the 21^st Century. “[O]ur democracy hangs in the balance. There is a lot of power in words. But one problem is that misinformation tends to be easier to understand than accurate information and that creates a problem. I am very concerned about the road we’ve set ourselves on.”

Disinformation is at the heart of political division in America. How bad is the division? A University of Virginia poll in 2021 found that about 50 percent of Trump voters and 40 percent of Biden voters agreed to some extent that the country should split up, with either red or blue states seceding.

For our democracy to survive, someone or something must choke the flow of disinformation. Our best chance might just be a jury deciding a defamation case in Delaware and awarding massive punitive damages to deter Fox and others from broadcasting statements they know to be false.

Can Dominion Prove Defamation?

There is no such thing as a slam-dunk in civil litigation, but Dominion seems to have evidence amounting to something pretty close. That is why Dominion’s attorneys took the highly unusual step of filing a motion for summary judgment. Dominion is asking the court to take the case away from a jury because the evidence warrants only one conclusion. Normally, defendants file this motion to dismiss all claims against them; courts grant them only occasionally.

If Judge Eric Davis grants Dominion’s motion, then Fox would be liable for defamation and a jury would decide only the amount of compensation.

“It feels like a cut-and-dried case of defamation,” Baleria said even before Fox’s internal communications were made public. “Most of the statements in issue are easy to disprove on their face.”

In the torrent of disinformation that was Fox’s post-election coverage, three outlandish assertions stand out: (1) Dominion is owned by Smartmatic which was founded in Venezuela to rig elections for Hugo Chavez; (2) Dominion’s software flipped votes from Trump to Biden; and (3) Dominion paid kickbacks to public officials to obtain contracts.

According to Dominion, the company was founded in Toronto with the aim of making it easier for disabled persons to cast votes, and it has never done business in Venezuela. Dominion is an American corporation headquartered in Denver, while Smartmatic is a competitor.

Dominion has cited findings from the Cybersecurity and Infrastructure Security Agency, the U.S. Election Assistance Commission, and independent election experts that the 2020 election was completely secure, and no votes were altered.

As to accusations of bribery, Dominion in court filings has stated that the “false assertion that Dominion had bribed Georgia officials—a claim for which [Trump attorney Sidney] Powell never offered a shred of evidence—was manufactured out of whole cloth in order to discredit Georgia Republicans after they publicly rebutted Powell’s and her allies’ false claims attacking Dominion and Georgia’s elections results…”

Dominion’s attorneys sent several letters to Fox in 2020 that debunked these claims. Fox continued to air false election fraud stories from Powell, Rudy Giuliani, and Mike “My Pillow” Lindell in order to boost its ratings and revenues.

Fox’s attorneys have not challenged the basic facts, which is how Dominion was able to file its motion for summary judgment with a straight face. It is often difficult for a public figure such as Dominion to prove the statements that harmed its reputation were made with malice. But the claims broadcast on Fox were verifiably false and Fox was placed on notice that they were indeed false.

That would be enough, but there is more.

Fox Hosts May Have Chiseled Their Own Epitaph

In the discovery process in which litigants exchange documents and take testimony to obtain a complete picture, alternate stories can emerge. Sometimes, one side gets lucky and discovers a smoking-gun document that proves its case. When Fox turned over its internal emails and private text messages, it amounted to a treasure trove of helpful information for Dominion.

The documents indicate that Fox broadcast the disinformation even though its hosts and producers thought them absurd. “Sidney Powell is lying,” Carlson texted to Ingraham on Nov. 18, 2020. “Sidney is a complete nut,” Ingraham texted back. “Ditto Rudy,” she added.

A Fox reporter, Jacqui Heinrich, posted material on Twitter that was critical of Trump’s allegations about Dominion. Carlson pleaded to Hannity, “Please get her fired. Seriously.… What the f**k?” Hannity complained to higher-ups and the tweet quickly vanished.

Other communications indicate that Fox was concerned about ratings, revenues, and the price of its stock. Accurate reporting was not on its radar.

This is textbook malice. The entire case is the defamation equivalent of a rear-end hit in a negligence lawsuit. Drivers have a clear legal duty to maintain a safe distance from the car traveling ahead of them. In those cases, liability is automatic. Similarly, journalists have a legal duty to refrain from intentionally publishing false statements about others that harm their reputation.

Judges rarely take a case away from a jury, but Dominion has made a persuasive argument: under the facts, no reasonable jury could find that the statements did not disparage Dominion or were made in good faith.

Moreover, the emails and texts are the stuff of which punitive damages are made. A jury may accept or reject the $920 million in business losses that Dominion’s financial expert has estimated, but punitive damages are more subjective. A jury could award billions to Dominion because punitive damages would be based on Fox’s bad behavior and substantial revenues and not on Dominion’s lost profits.

Based on court filings, Fox appears to have no credible defense. Truth is an absolute defense to a claim of defamation, but the tweets and emails show that nobody at Fox believed the Big Lie. Absence of malice went out the window when the emails and texts were turned over to Dominion.

From court filings it appears that Fox’s Hail Mary defense is that it accurately reported serious allegations made on Trump’s behalf. The problem with the “neutral reportage” argument is that Fox’s lawyers are conflating cheerleading with reporting. One example is an exchange broadcast on November 8, 2020 between Fox host Maria Bartiromo and Powell:

Bartiromo: Sidney, we talked about the Dominion software. I know that there were voting irregularities. Tell me about that.

Powell: That’s putting it mildly. The computer glitches could not and should not have happened at all. That is where the fraud took place, where they were flipping votes…when they had to stop the vote count and go in an replace votes for Biden and take away Trump votes.

Bartiromo: I’ve never seen voting machines stop in the middle of an election, stop down and assess the situation.

A responsible business would never provide a platform for such troubling allegations without objective evidence. At a minimum, the host would challenge the factual representations instead of agreeing with them.

In other interviews, Fox hosts responded to unfounded accusations not with probing questions, but with “yes” and “right.” This is not reporting, it is supporting.

Judge Davis has previously indicated that Fox’s defense is shaky because its reporting did not appear to be accurate. He seems to understand that reporting damning allegations without offering any proof is not a defense, it is the foundation of a defamation claim.

Will the Case Settle?

Most civil cases settle because businesses do not wish to stake their future on jurors with unknown backgrounds and uncertain prejudices. Also, trials are expensive and appeals take time.

It seems as if Dominion has been dealt a winning hand, but Fox can always deflect a huge verdict against it by waving the bankruptcy card. So any settlement would have to be substantial enough for Dominion to walk away from a promising case but not so excessive that Fox would choose to take a billion-dollar risk that could lead to bankruptcy.

Whether through a monumental verdict or a hefty settlement, the case presents an extraordinary opportunity to nudge us back to a fact-based democracy by deterring Fox and others from publishing lies concerning the issues of the day. However, if Fox were to prevail through a nominal settlement or verdict, all bets would be off.