The 2021 college-football season might become known as the year when coaches did stupid things to get themselves fired and then filed lawsuits they have little chance of winning. The trend could hit home in Alabama, as first-year Auburn head coach Bryan Harsin refuses to disclose his vaccination status in the face of a Dec. 8 deadline for university employees to get vaccinated or face possible termination.
The most recent example of a termination comes from Washington State University where head coach Nick Rolovich and four assistants were fired for failing to comply with Gov. Jay Inslee's vaccine mandate for state employees. An attorney for the head coach said WSU had denied a religious exemption based on Rolovich's "devout" Catholic faith. A university spokesperson did not confirm denial but said simply that Rolovich's request for accommodations could not be met.
What tenets of the Catholic faith would keep someone from taking a vaccine that has proven safe, effective, and life-saving during a pandemic of historic proportions? Perhaps we will find out when the case reaches court. For now, my guess is that Rolovich's decision to defy a governor's lawful order, which was designed to protect public health, probably will not end well for the coach. It could void a contract that pays him $3 million a year. Rolovich had the Cougars off to a 4-3 start, which is a pretty good record for Washington State, suggesting he might have been in for a pretty strong run. But that run now is over
An even more interesting case comes from the University of Tennessee at Chattanooga (UTC), where a former assistant football coach has filed a federal lawsuit over his termination after he posted a disparaging tweet about Georgia political figure Stacey Abrams. Chris Malone, who had been offensive-line coach at Chattanooga, claims school officials violated his free-speech rights under the First Amendment.
What makes the UTC case the most interesting of the three? It involves the intersection of politics and the First Amendment, and we suspect that could spark some legal fireworks.
At first glance, Malone appears to have a strong case. The general rule is that private employers can fire almost anyone who makes a public statement that the employer considers inappropriate or distasteful. But employees at public institutions, such as state universities, many times have First Amendment protection to comment on matters of public concern. There are, however, exceptions to that general rule, and I suspect Malone will have difficulty getting over those hurdles.
The issue of First Amendment protection for government employees certainly gets our attention here at Legal Schnauzer. As long-time readers know, I was wrongfully terminated after working almost 20 years at the University of Alabama at Birmingham (UAB) for writing this blog, focusing on judicial and political corruption in Alabama -- and beyond. I'm not guessing that I was fired because of my blog. A UAB human-resources official told me that my supervisor, Pam Powell, targeted me because of my reporting about the Don Siegelman case -- even though Powell long has portrayed herself as a Democrat and a Siegelman supporter. I tape-recorded the conversation with HR official Anita Bonasera and was prepared to use it in court to prove the real reason behind my firing, but the late federal judge William Acker granted the university summary judgment without conducting any discovery, which is contrary to longstanding legal precedent and essentially means the case was decided with no evidence. (I'm not making that up.) Acker likely committed fraud on the court, which would void his ruling and possibly give new life to my lawsuit for wrongful termination.
Substantial evidence indicates my firing was not just a matter of running afoul of my immediate supervisor -- with whom I generally had gotten along well and who had always given me positive performance reviews. Rather, political allies of then-governor Bob Riley -- Siegelman's primary political opponent and a member of the university's board of trustees -- likely pushed for my career assassination. Sadly, neither Powell, nor then-UAB President Carol Garrison, nor anyone else in the university hierarchy, had the guts to stand up for the rule of law, which clearly held my speech was protected by the First Amendment -- and, as a public employee, I could not suffer negative job consequences for it. On top of that, my termination was a flagrant violation of UAB's own policies.
Bottom line: I know from firsthand experience that Chris Malone is entering a legal thicket at Chattanooga -- and based on news reports, it appears to be largely of his own making. Malone's attorney, Doug Churdar of Greenville, SC, is talking a solid game about "UTC getting acquainted with the First Amendment." But it might not be that simple. Our research indicates the law on the protections afforded public employees is not fully developed -- and it includes qualifiers that might not work in Malone's favor. (More on that in an upcoming post.)
How did Chris Malone step in doo-doo at UTC. It could have been easily avoided, but Malone apparently could not resist picking on Stacey Abrams at a time of heightened political and racial tensions. From a report at Fox News:
The tweet came in the midst of the Georgia Senate runoff elections.
"Congratulations to the state [of] GA and Fat Albert @staceyabrams because you have truly shown America the true works of cheating in an election, again!!!" Malone wrote. "Enjoy the buffet Big Girl! You earned it!!! Hope the money was good, still not governor!"
Malone deleted the tweet after former players responded negatively. He said in the lawsuit he heard nothing about the tweet until Jan. 6, when [head coach Rusty] Wright allegedly told him the matter had gone "over his head." Malone was then called on to resign the next day.
The school later announced that Malone had been fired.
Wright and Athletics Director Mark Wharton quickly distanced themselves from Malone's statements. From Fox News:
"Our football program has a clear set of standards," Wright said in a statement. "Those standards include respecting others. It is a message our players hear daily. It is a standard I will not waiver on. What was posted on social media by a member of my staff is unacceptable and not any part of what I stand for or what Chattanooga Football stands for. Life is bigger than football and as leaders of young men we have to set that example, first and foremost. With that said, effectively immediately, that individual is no longer a part of my staff."
Wharton added: "The sentiments in that post do not represent the values of our football program, our athletics department or our university."
Malone said he was unfairly treated by the media.
"Calling politicians liars and cheaters is a proud American tradition. Nobody’s got a problem with it until [it's] ‘their’ politician," Malone said in the complaint. "And fat jokes might be unkind, but they aren’t uncommon. Just ask Chris Christie and Donald Trump."
Inside Higher Ed has more details:
Malone argues in the lawsuit that the tweet was simply a “fat joke” and that university officials retaliated against him for exercising his First Amendment rights. He sent the tweet “as a private citizen -- on his own personal time, at his personal residence, and from his personal Twitter account” and the account did not identify him as an employee of the university, according to the lawsuit.
UT Chattanooga “is a public university and is governed by the First Amendment,” Malone’s attorney, Doug Churdar, said in a press release. “UTC is going to get acquainted with the First Amendment. As a public school, it cannot control what its employees say at social gatherings or on social media. It certainly cannot fire them for criticizing and mocking politicians.”
Will Churdar's view hold the day? That's not clear -- at least not to us. An article from Cornell University indicates the issue of government employers and the First Amendment hardly is a model of clarity and consistency. Could the Malone case cause the U.S. Supreme Court to step in and clear up things? We don't think that is out of the question.
(To be continued)