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Eleventh Circuit Court of Appeals affirms dismissal of Georgia college cheerleader’s civil rights lawsuit against county Sheriff for his alleged role in conspiracy to prevent cheerleaders from kneeling during National Anthem

On September 2, 2021, in Dean v. Warren, No. 19-14674, the Eleventh Circuit Court of Appeals affirmed a district court’s dismissal of the defendant, a Georgia county Sheriff, from a Title 42, § 1983 civil rights complaint filed by a college cheerleader against several administrators at Kennesaw State University, the Sheriff, and a Georgia state legislator.Following the example set by NFL football player, Colin Kaepernick, the plaintiff and other cheerleaders at Kennesaw State University had knelt during the playing of the National Anthem at a football game in protest of racial injustice, after which a rule was imposed restricting the cheerleaders to the stadium tunnel during the playing of the Anthem. The plaintiff alleged that the Sheriff and others had communicated to the university administration that kneeling should not be allowed at games and that the Sheriff had engaged in the conspiracy to deprive her of her constitutional rights “because of her race,” that is, because the plaintiff and her protesting teammates are African American. The Eleventh Circuit ruled that the plaintiff had failed to plead sufficient facts to plausibly support the theory of direct race-based animus, noting that “discrimination based on the protesting of racial issues, no matter how compelling those issues are, is simply not the same as discrimination based on the race of the protestors.” The Court explained: [o]ur “experience and common sense,” [quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)], tell us that Warren’s conduct was likely motivated by the nature and content of the kneeling cheerleaders’ message and that his conduct therefore would have been the same had some or even most of the cheerleaders been white.“ The Eleventh Circuit also rejected the plaintiff’s alternative argument, an indirect race-based theory, that the Sheriff acted to stop the cheerleaders’ kneeling because of its racial message and thereby violated § 1985(3), a statute which created a cause of action against private individuals who, among other things, undertake conspiracies “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” The Eleventh Circuit quoted fromGriffin v. Breckenridge, 403 U.S. 88, 102 (1971): “[t]he language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class based, invidiously discriminatory animus behind the conspirators’ action. Based on Griffin and other precedents, the Eleventh Circuit rejected the possibility that that “a class of African Americans protesting police brutality against African Americans can support a § 1985(3) claim.”