Fighting to kneel: A Kennesaw State University cheerleader sues for the right to protest on the playing field

"You can’t just silence people if you don’t agree with what they say.”

Fighting to kneel

Photograph by Cori Carter

Editor’s note: Shortly after this story was published online, a federal judge dismissed the complaint against Earl Ehrhart and Neil Warren, but not Sam Olens and other defendants. A lawyer for Tommia Dean did not immediately have a comment.

Among the roughly 6,000 fans who gathered at Fifth Third Bank Stadium for the second home game of Kennesaw State University’s 2017 football season was Neil Warren, whose day job is sheriff of Cobb County. Sheriff Warren’s reputation as a no-nonsense, west Cobb Republican who is hard on crime and undocumented immigration earned him a national profile and kudos from Fox News. Warren considers himself a patriot, pro-flag, and pro-military. What he saw in the minutes leading up to the KSU Owls’ 3:30 p.m. kickoff made him furious.

About a week and a half before the game, five of the KSU cheerleaders, all black, had decided via group text to kneel when the national anthem played, much the same way San Francisco 49ers quarterback Colin Kaepernick did in 2016. Sophomore Tommia Dean had consulted her mother and her uncle, who was in the military and who supported her choice. For Dean, the protest was about police officers not being held accountable for unjustified killings. She has a brother, and she pictures him every time she sees the family members of another young black man killed in the news. “I thought of myself in their shoes,” she says. “I would want someone to stand up for me if that was my brother.” Dean was among the cheerleaders who kneeled.

When Sheriff Warren saw the cheerleaders’ protest, he was “shocked to see such a lack of respect for our flag, our national anthem, and the men and women that serve our nation,” he told the Marietta Daily Journal. “To witness these ill-informed students acting this way clearly tells me KSU needs to get busy educating these students on more than just passing their classes. They need to learn all that the flag truly represents.”

“They need to learn all that the flag truly represents.”

In the days following the game, according to a report by the Georgia Board of Regents, Warren called KSU President Samuel Olens—a former state attorney general and Cobb County chairman—and told Olens that the cheerleaders should not be allowed to kneel during the national anthem. Republican state representative Earl Ehrhart, famous at the time for his outsize influence over Georgia’s higher education budget and proclivity for political incorrectness (he once described a KSU art exhibit on AIDS as less artistic than “a fully loaded porta-potty”), also called Olens the same day, echoing Warren’s reaction that the silent protests must be stopped.

That week, Olens met with two of KSU’s athletic directors, one of whom had also received a call from Ehrhart. The group agreed that, for the first time in the football program’s three-year history, the cheerleaders would be hidden away in the stadium tunnel for the anthem to “improve fan experience,” per the Board of Regents report. During the next home game, Dean was surprised when she realized the cheerleaders weren’t going to be on the field. Annoyed, Dean and the others took a knee in the tunnel.

The Supreme Court declared that students’ and teachers’ rights to free speech didn’t end “at the schoolhouse gate” in Tinker v. Des Moines Independent Community School District, a 1969 case that ruled a 13-year-old student could wear a black armband to her public school in order to protest the Vietnam War. In order for school officials “to justify prohibition of a particular expression of opinion,” the judges wrote for the majority in Tinker, they “must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

Fighting to kneel
The cheerleaders who took a knee are sometimes called the Kennesaw Five.

Photograph by Cory Hancock

But court rulings over the past 30 years have often sided with school officials, and very little case law has established what defines protected or school-sponsored speech when on the college or university field. Frank LoMonte, the executive director of the University of Florida’s Brechner Center for Freedom of Information, says that’s largely because many athletes choose not to push the issue for fear of losing a scholarship, or because of the long time between filing and adjudication. “Even if you prevail against the college, your victory might be a hollow and practically meaningless one,” he says.

Now entering the fray is a lawsuit filed last September by Dean that details just how far Warren, Olens, Ehrhart, and two KSU athletic directors—all powerful, white men—went to prevent anyone from seeing the cheerleaders kneel a second time. And it could help decide when students, and student athletes, can express their opinions. In a series of text messages following the game, Ehrhart and Warren took credit for pressuring Olens into making the change. “Thanks for always standing up too [sic] these liberal [sic] that hate the USA,” Warren wrote to Ehrhart a few days after the game. Ehrhart responded, “He had to be dragged there but with you and I pushing he had no choice. Thanks for your patriotism my friend.”

Dean’s lawsuit claims these texts and other communications prove a conspiracy against her that violates the Ku Klux Klan Act, which was passed by Congress in 1871 to help stop private individuals, such as members of the Klan, from pressuring or conspiring with public officials to violate citizens’ constitutional rights. The complaint also alleges that Dean’s protest “constitutes expressive speech protected by the First and Fourteenth Amendments to the U.S. Constitution.”

“You can’t just silence people if you don’t agree with what they say.”

A motion to dismiss Dean’s case filed by Ehrhart’s attorney, Jonathan Crumly, however, argues that the cheerleaders were not exercising private speech when they kneeled during the national anthem, but rather government speech; by wearing KSU uniforms and serving as cheerleaders, he argues, they were representatives of the school. The motion adds that there is no proof that Ehrhart, who did not attend the game, was even aware that Dean or the other cheerleaders were black. The motion omits the ironic fact that Ehrhart cosponsored a 2017 bill that prohibited a school from subjecting a student to disciplinary action based on his or her expressions or viewpoints, or reactions to them.

Tommia Dean fighting to kneel

Photograph by Cori Carter

In the wake of student and community calls for Olens to step down from his $450,000-per-year position as KSU president, he did so in February 2018, but not before walking back his decision to allow the cheerleaders their silent protest. The cheerleaders returned to the field on November 11—Veteran’s Day—and locked arms. The following week, they kneeled again to boos from members of the crowd.

“This country was founded in protest,” says Dean’s cocounsel Randy Mayer. “Peaceful protest is essential to a democracy.” Mayer added that Dean “made no disrespectful gestures, and, when she kneeled, bowed her head, and placed her hand over her heart. She appeared to be praying for this country to fulfill its best self.”

Dean, who is no longer on the cheerleading squad, says none of the men named in the lawsuit ever tried to reach out to her. She believes they simply don’t want her to be allowed her peaceful protest. The lawsuit is “about holding people accountable for their actions,” she says. “And letting people know that you can’t just silence people if you don’t agree with what they say.”

This article appears in our February 2019 issue.