Tommia Dean v. Neil Warren ( 2021 )

USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 1 of 47
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-14674
________________________
D.C. Docket No. 1:18-cv-04224-TCB
TOMMIA DEAN,
Plaintiff - Appellant,
versus
NEIL WARREN,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 2, 2021)
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and ED CARNES, Circuit
Judges.
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 2 of 47
JILL PRYOR, Circuit Judge:*
Joining a national movement intended to curb police brutality against
African Americans and advance the cause of racial justice, Tommia Dean, a
cheerleader at one of Georgia’s public universities, and a handful of her teammates
kneeled during the pre-game national anthem at one of the university’s football
games. What followed, according to Dean, was a public and private conspiracy—
orchestrated by the university’s leadership, the county sheriff, and a Georgia
legislator—to deprive Dean and her teammates of their First Amendment rights.
Seeking redress, Dean filed this action alleging violations of 42 U.S.C. § 1983 and
§ 1985(3).
The only issue on appeal is whether the district court erred by dismissing
Dean’s § 1985(3) claim against the sheriff, Neil Warren. The district court
concluded that Dean failed to state a § 1985(3) claim because she failed to
plausibly allege that Warren possessed the requisite class-based animus. After
careful review, and with the benefit of oral argument, we agree with the district
court that Dean failed to surmount § 1985(3)’s class-based animus bar under the
*
There are two majority opinions for the Court in this case. One is by Judge Jill Pryor,
which all three judges join. The other majority opinion, which adds an alternative holding, is the
concurring opinion of Chief Judge William Pryor, joined by Judge Ed Carnes.
2
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 3 of 47
standard established by Supreme Court precedent. We therefore affirm the district
court’s order dismissing Dean’s claim against Warren.
I. BACKGROUND
A. Factual Background 1
During the National Football League’s 2016 season, Colin Kaepernick, a
San Francisco 49ers quarterback, refused to stand for the national anthem. Instead,
he kneeled in protest of police brutality against African Americans.2 His kneeling
ignited a national controversy concerning police brutality, the appropriateness of
kneeling in protest during presentations of the national anthem, and racial injustice
in America.
Kaepernick’s kneeling encouraged other athletes to kneel, including a group
of African American cheerleaders at Kennesaw State University, a public
university in Georgia. Dean, the plaintiff, was one of those cheerleaders. After
she and her teammates kneeled in protest for the first time in September 2017,
several public and private individuals conspired to prevent Dean and her
teammates from kneeling during the national anthem as a form of protest.
1
Because this case is an appeal from an order granting a motion to dismiss, we accept as
true all well-pled allegations in the complaint and construe them in the light most favorable to
Dean. Blevins v. Aksut, 849 F.3d 1016, 1018–19 (11th Cir. 2017). We therefore recite the facts
as Dean has alleged them.
2
“African Americans” is the term Dean used in her complaint and briefing on appeal.
3
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 4 of 47
When the President of KSU, Samuel Olens, learned of the kneeling, he
emailed the university’s Vice President of Student Affairs to express concern about
the protest, directing the Vice President to schedule a meeting with the
cheerleaders the following week. The day after the cheerleaders first kneeled, Earl
Ehrhart, then a Georgia state legislator and chair of the state House committee with
control over the budget for Georgia’s public universities, called Scott Whitlock,
KSU’s Senior Assistant Athletic Director, instructing him that the cheerleaders
should be prohibited from kneeling during the national anthem. 3
The next day, the presidents of the University System of Georgia gathered to
discuss the kneeling incident. During that gathering, the University System’s staff
relayed to the presidents, including Olens, legal advice from the office of
Georgia’s Attorney General. That advice instructed the presidents that the First
Amendment protected the students’ right to kneel in protest during the national
anthem, so long as the expression was not disruptive. The presidents were also
informed that no action should be taken on the protests without first discussing it
with the University System.
That same day, Ehrhart called Olens to tell him that cheerleaders must not be
permitted to kneel during the national anthem and those who continued to kneel
3
According to the complaint, Ehrhart has, in the past, described himself as “the funding
source” for the University System and has had a history of wielding his power of the purse to
pressure administrators of Georgia’s state universities to comply with his personal agenda.
4
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 5 of 47
should be removed from the team. During this call, or by a subsequent
communication, Olens assured Ehrhart that the cheerleaders would not kneel again.
Ehrhart was not the only individual to relay the message that the kneeling must
cease to Olens that day. Neil Warren, the county sheriff, did too.
Two days later, Whitlock and Matt Griffin, then-interim Athletic Director at
KSU, announced to an assembled group of KSU officials that the cheerleaders
would not be allowed on the field during the anthem but would instead remain in
the stadium’s tunnel. Assistant Athletic Director Michael DeGeorge questioned
the timing of the policy change that came days after the protest. That same day,
Griffin met with Olens to obtain permission to implement the “tunnel rule”: the
new policy requiring cheerleaders to remain in the tunnel during the national
anthem. Olens gave Griffin permission to implement the tunnel rule to appease
Ehrhart and Warren.
Two days later, Warren again called Olens about the protests. Olens assured
Warren that the protests would not happen again, informing him that the newly
adopted tunnel rule prevented the cheerleaders from taking the field during the
national anthem. That day, the Marietta Daily Journal published an article stating,
“Ehrhart said Attorney General Chris Carr and Olens have been helpful in the
5
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 6 of 47
situation and he [Ehrhart] believes the behavior [the anthem kneeling] will not
occur at KSU again.” Doc. 1 ¶ 26. 4
The next day, one week after the first kneeling protest, the tunnel rule took
effect. For the first time in KSU’s history, the cheerleaders were not on the field
during the national anthem. Instead, they were held in the tunnel by KSU Athletic
Department representatives until the anthem concluded.
Warren and Ehrhart celebrated the development, taking credit for the tunnel
rule. In a text message, Warren boasted, “[n]ot letting the cheerleaders come out
on the field until after national anthem [sic] was one of the recommendations that
Earl [Ehrhart] and I gave him [Olens]!” Id. ¶ 29. In a text to Warren, Ehrhart
commented, “He [Olens] had to be dragged there but with you and I pushing he
had no choice. Thanks for you[r] patriotism my friend.” Id.Two days after the tunnel rule was implemented, an opinion writer for the
Marietta Daily Journal warned the cheerleaders that they had better not insist on
kneeling during the national anthem. He informed Dean and her teammates that
“the sheriff, any sheriff, is about the last person you want to mess with in any
county” and warned them that their “antics” had “riled [up] . . . something fierce
[in Warren].” Id. ¶ 34. He explained, “Again these guys [Warren and Ehrhart] are
very upset with you. Don’t say I didn’t warn you.” Id.4
“Doc.” numbers refer to the district court’s docket entries.
6
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 7 of 47
Some KSU students were dismayed by the administration’s apparent attempt
to prevent the cheerleaders from kneeling during the anthem. They protested in
support of the cheerleaders. The Chancellor of the University System of Georgia
directed the Board of Regents’ Office of Legal Affairs to conduct a review of the
actions KSU took following the cheerleaders’ protest.5 While that review was
ongoing, the cheerleaders were again held off the field in the tunnel during the
national anthem, where four members, including Dean, again kneeled in protest.
Less than a month later, facing pressure from students, faculty, the press,
and the Board of Regents, Olens wrote a public letter to the KSU community
explaining that, at the next home game, the tunnel rule would be abolished and the
cheerleaders would again be permitted to take the field before presentation of the
national anthem. In the letter, Olens recognized that the central message of the
protest concerned political issues of national concern.
The Regents’ report was issued days later. It found that Olens was aware of
the tunnel rule’s implementation and did not prevent it. It also found that Olens
acted contrary to the University System Office’s instruction to provide it with
notice of any policy changes made in response to the cheerleaders’ kneeling.
5
The University System of Georgia is a state agency composed of 26 of Georgia’s higher
education institutions. The Board of Regents oversees the institutions that compose the
University System of Georgia. The Chancellor is elected by the Board’s members and is the
Board’s chief executive officer and the University System’s chief administrative officer.
7
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 8 of 47
Finally, it questioned a justification KSU officials gave for the tunnel rule, that it
was designed to eliminate a two-minute gap in the pregame music, implying that
the justification was likely pretextual given the timing of the rule’s implementation
and the fact that the two-minute gap was remedied by other means.
B. Procedural History
In a single action, Dean sued two groups of defendants. In Count 1, she
alleged that Olens, Whitlock, and Griffin deprived her of her expressive speech
rights under the First and Fourteenth Amendments. See 42 U.S.C. § 1983.
Count 1 is not relevant to this appeal.6
In Count 2, Dean alleged that Ehrhart and Warren conspired to deprive her
of her constitutional rights.7 See 42 U.S.C. § 1985(3). Dean alleged that Warren
engaged in the conspiracy “because of her race,” that is, because Dean and her
protesting teammates are African American. Id. ¶ 50. She also alleged that
Warren engaged in the conspiracy “because . . . she was protesting police brutality
against African Americans.” Id.6
After the district court entered the order giving rise to this appeal, the parties filed a
joint motion for voluntary dismissal of the § 1983 defendants pursuant to a settlement agreement.
The district court granted the motion, dismissing the § 1983 defendants. Thus, Dean’s only
remaining count is the one at issue in this appeal.
7
Dean’s § 1985(3) claim against Ehrhart is also irrelevant because Dean appealed the
district court’s dismissal order only as to Warren. So, we recount the procedural history as it
relates to Warren only.
8
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 9 of 47
Warren moved to dismiss for failure to state a claim. In the motion, Warren
argued, among other things, that Dean’s claim failed as a matter of law because
Dean had not stated a plausible § 1985(3) claim that he had acted with a racial or
otherwise class-based discriminatory motive.
The district court agreed. It explained that § 1985(3) “requires a showing of
some racial, or perhaps otherwise class-based, invidiously discriminatory animus
behind the conspirators’ action.” Doc. 36 at 9 (internal quotation marks omitted).
Dean’s allegations, the court concluded, failed to make this showing. In assessing
whether Dean could state a claim under § 1985(3), the district court conceptualized
three theories by which she might survive the class-based animus requirement.
First, Dean alleged a direct race-based theory of animus—that Warren
undertook the conspiracy “because of her race.” Doc. 1 ¶ 50. The district court
concluded that she failed to state a § 1985(3) claim under this theory because she
failed to allege sufficient facts showing that Warren was motivated by her race.
Second, Dean alleged an indirect race-based theory of animus—that Warren
undertook the conspiracy because the content of her protest concerned police
brutality against African Americans, which is a political issue implicating race.
The district court concluded that she failed to state a claim under this theory
because the complaint failed to allege sufficient facts linking Warren’s conduct to
the content of the cheerleaders’ protest. Alternatively, the court concluded that,
9
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 10 of 47
even if Warren’s conduct was aimed at the protest’s content, Dean’s indirect race-
based theory was not cognizable under binding precedent. See Bray v. Alexandria
Women’s Health Clinic, 506 U.S. 263 (1993).
Third, Dean alleged a political class-based theory of animus—that Warren
undertook the conspiracy because of her membership in a political class, namely,
the class of people protesting police brutality against African Americans. The
district court acknowledged that it is unsettled in this circuit whether a § 1985(3)
claim may be predicated upon political class-based animus and, relying on
nonbinding authority, rejected Dean’s political class-based theory.
After reasoning that none of Dean’s theories surmounted the class-based
animus bar, the district court concluded that she failed to state a § 1985(3) claim
and dismissed Warren from the action. This is Dean’s appeal.
II. STANDARD OF REVIEW
We review de novo the grant of a defendant’s motion to dismiss, accepting
allegations in the complaint as true and construing them in the light most favorable
to the plaintiff. See Blevins v. Aksut, 849 F.3d 1016, 1018–19 (11th Cir. 2017).
10
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 11 of 47
III. ANALYSIS
A § 1985(3) plaintiff must satisfy four requirements, one of which disposes
of this appeal.8 This case turns on the requirement that the plaintiff allege the
defendant conspired against her “for the purpose of depriving . . . any person or
class of persons of the equal protection of the laws, or of equal privileges and
immunities under the laws.” Griffin v. Breckenridge, 403 U.S. 88, 102–03 (1971)
(quoting 42 U.S.C. § 1985(3)). The Supreme Court has described this requirement
as the plaintiff’s obligation to allege, among other things, “some racial, or perhaps
otherwise class-based, invidiously discriminatory animus” behind the defendant’s
action taken in furtherance of the conspiracy. Bray, 506 U.S. at 267–68 (quoting
Griffin, 403 U.S. at 102). That animus standard requires that the defendant
proceeded on his course of conduct “because of, not merely in spite of, its adverse
effects upon an identifiable group.” Id. at 271–72 (internal quotation marks
omitted).
Like the district court, we read Dean’s complaint to have alleged three
theories of § 1985(3) liability. The district court concluded that each theory failed
8
The § 1985(3) defendant must have (1) conspired or gone in disguise on the highway or
on the premises of another, (2) 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, (3) taken or caused an action to be taken in furtherance of the
conspiracy’s object, and (4) injured an individual’s person or property or deprived her of
exercising any right or privilege of a United States citizen. Griffin v. Breckenridge, 403 U.S. 88,
102–03 (1971).
11
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 12 of 47
either because the facts alleged in the complaint failed to plausibly state a claim or
because the theory, as a matter of law, could not support § 1985(3) liability. We
discuss each of these theories in turn. After careful review, and with the benefit of
oral argument, we affirm the district court’s ruling that Dean failed to state a claim
under § 1985(3).9
A. Dean’s Direct Race-Based Theory
We agree with the district court that Dean’s direct race-based theory cannot
succeed because she failed to plead sufficient facts supporting it. The theory is that
Warren undertook the conspiracy to prevent Dean and her protesting teammates
from exercising their First Amendment rights because they are African American.
Warren does not dispute—and we have no doubt—that, as a matter of law, a
plaintiff could satisfy the class-based animus requirement with such a theory. It is
well-settled that a conspiracy aimed at depriving African Americans of
constitutional rights because they are African American falls within § 1985(3)’s
9
Warren argues that Dean failed, in her opening brief, to challenge an alternative ground
for dismissal and therefore abandoned the issue. The district court ruled that “[a]n independent
ground for granting [Warren’s] motion to dismiss” was that Dean failed to allege that the
§ 1985(3) defendants’ conspiracy violated a law other than § 1985(3). Doc. 36 at 26 n.2.
According to Warren, because Dean failed to attack that alternative ground, the district court’s
order must be affirmed. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.
2014). We disagree. Although Dean did not mention the district court’s alternative ruling as
such, she addressed in her opening brief the underlying question, arguing that she alleged a
violation of law other than § 1985(3)—the First Amendment. Because Dean does not lose this
appeal for failure to challenge the district court’s alternative ground, and we resolve the appeal
on the class-based animus issue, we do not address whether the district court erred by dismissing
Dean’s claim for failure to allege an independent legal violation.
12
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 13 of 47
heartland. See Griffin, 403 U.S. at 103 (holding that targeting plaintiffs because of
their race falls within the core of § 1985(3)). Dean’s problem is that her complaint
fails to plead sufficient facts to plausibly support the theory.
Under Federal Rule of Civil Procedure 8(a)(2), when determining whether a
complaint survives a motion to dismiss, we begin by identifying allegations that,
because they are merely conclusory or state legal conclusions, are entitled to no
presumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). Then,
turning to the remaining allegations, we consider whether the complaint
“contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Id. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). Plausibility rests between “possibility” and “probability,” and
we determine whether a complaint satisfies that standard by “draw[ing] on [our]
judicial experience and common sense.” Id. at 678–79.
Dean’s complaint contains two allegations that arguably support her theory
that Warren was motivated by Dean’s and her teammates’ race. First, the
complaint alleged that “[a]ll of the KSU cheerleaders who kne[eled] during the
national anthem are African American.” Doc. 1 at ¶ 50. Second, Dean alleged that
Warren “engaged in the conspiracy against [her] because of her race.” Id. Dean
concedes that the second allegation does not help her clear the plausibility bar
because, as her brief puts it, the allegation was intended to “provide[] the legal
13
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 14 of 47
framework for the factual allegations of the [c]omplaint.” Appellant’s Br. at 11;
see Iqbal, 556 U.S. at 680–82 (holding that plaintiff’s allegation that defendants
subjected him to harsh conditions “solely on account of his religion, race, and/or
national origin” was a “formulaic recitation of the elements” of plaintiff’s claim
and “not entitled to be assumed true” (alteration adopted) (internal quotation marks
omitted)). And the first allegation, standing alone, does not nudge Dean’s direct
race-based theory of § 1985(3) liability across the line from possible to plausible.
Iqbal, 556 U.S. at 682 (holding that complaint did not “contain facts plausibly
showing that [the defendants] purposefully adopted” a discriminatory policy even
though the complaint alleged that the challenged policy had a disparate impact).
That Warren’s targets are African American, without more, does not make it
plausible that he targeted the cheerleaders because they are African American.
Dean resists this conclusion by pointing to other allegations in her complaint
that she contends support her direct race-based theory. These include allegations
that: the content of the cheerleaders’ protest concerned police brutality against
African Americans specifically; the cheerleaders engaged in the protest in
solidarity with professional athletes who themselves were protesting racial
injustice; similar protests were occurring nationwide; the protests were initiated by
Kaepernick, who is African American; the protests were praised by some as
patriotic and condemned by others; Warren pressured Olens into implementing the
14
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 15 of 47
tunnel rule; and Olens eventually recognized that the cheerleaders were protesting
issues of national concern.
These allegations do not change our view of Dean’s direct race-based
theory. Certainly they “relat[e] to race and racial issues,” Appellant’s Br. at 12,
and they support the theory that Warren discriminated against Dean because of the
content of her protests (a subject to which we will return). But 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. Thus,
the additional allegations do not support Dean’s theory that Warren discriminated
against her because she is African American. Our “experience and common
sense,” Iqbal, 556 U.S. at 679, 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. Therefore, Dean failed to allege that Warren undertook
the conspiracy because Dean and her teammates are African American. We agree
with the district court that Dean’s direct race-based theory was insufficiently pled.
B. Dean’s Indirect Race-Based Theory
By contrast, Dean’s indirect race-based theory fails on legal, rather than
factual, grounds. This theory maintains that Warren undertook the conspiracy to
prevent Dean and her protesting teammates from exercising their First Amendment
15
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 16 of 47
rights because they were “protesting police brutality against African Americans.”
Doc. 1 at ¶ 50. Put differently, based on her allegations that Warren undertook the
conspiracy to thwart the protests, which were intended and widely understood to
concern racial issues, Dean argues that Warren undertook the conspiracy to stop
the cheerleaders’ kneeling because of its racial message and thereby violated
§ 1985(3). In our view, this theory of § 1985(3) liability is precluded by Supreme
Court precedent.
To explain why Dean’s indirect race-based theory is legally inviable we
must delve into § 1985(3)’s background and review the controlling Supreme Court
caselaw. Section 1985(3) is kin to the better known § 1983. See John C. Jeffries et
al., Civil Rights Actions: Enforcing the Constitution 798 (4th ed. 2018) (explaining
that both sections are derived from the Civil Rights Act of 1871, also known as the
Ku Klux Klan Act, and therefore that the sections “share much of the same
legislative history and many of the same objectives”). Section 1983 and § 1985(3)
differ, however, in significant respects. Unlike § 1983, which created a cause of
action against state actors who deprive individuals of rights secured by federal law,
§ 1985(3) 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.” 42 U.S.C. § 1985(3); see Griffin,
16
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 17 of 47
403 U.S. at 96–101. That § 1985(3) “reach[es] private action does not, however,
mean that it was intended to apply to all tortious, conspiratorial interferences with
the rights of others.” Griffin, 403 U.S. at 101. As the Supreme Court explained,
“[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.” Id. at
102.
Griffin held that § 1985(3)’s animus requirement was satisfied when the
complaint alleged that two white defendants, motivated by their mistaken belief
that the African American plaintiffs were traveling in a vehicle operated by a civil
rights worker, conspired to block the vehicle’s passage and violently terrorized the
plaintiffs. Id. at 89–91, 102–03. Since Griffin, the Court has elaborated on the
animus requirement in two cases that control the outcome of this appeal. See
United Bhd. of Carpenters & Joiners of Am., Loc. 610, AFL-CIO v. Scott, 463 U.S.
825 (1983); Bray, 506 U.S. 263. We turn to them now.
In Scott, the Court considered whether “conspiratorial discrimination against
employees of a non-unionized entity” satisfied § 1985(3)’s animus requirement.
463 U.S. at 829. The lower courts agreed that it did. Id. at 829–30. The Supreme
Court reversed. Id. at 830. Taking no position on the question whether § 1985(3)
“reaches conspiracies other than those motivated by racial bias,” the Court rejected
17
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 18 of 47
the proposition that § 1985(3) “forbids conspiracies against workers who refuse to
join a union.” Id. at 835. The Court acknowledged that § 1985(3) plainly forbids
“class-based animus . . . against [African Americans] and those who championed
their cause.” See id. at 836. It went on to hold, though, that the statute’s
legislative history suggested that Congress did not intend for it to extend to
“conspiracies motivated by economic or commercial animus” and that such an
expansive construction of § 1985(3) was “not compelled” by its plain language.
Id. at 837–39.
In Bray, the Court offered its most thorough discussion of the animus
requirement to date. It held that a conspiracy to obstruct access to an abortion
clinic was not actionable under § 1985(3) because the abortion-clinic plaintiffs
failed to satisfy the animus requirement. 506 U.S. at 266–68. The Court explained
that the animus requirement is comprised of two analytically distinct inquiries:
(1) whether there is a “qualifying class” and (2) whether the defendant was
motivated by discriminatory animus against the class. Id. at 269.
Beginning with the first inquiry, the Court rejected the possibility that the
“‘class’ of ‘women seeking abortion’” was a qualifying class. Id. It reasoned that,
“[w]hatever may be the precise meaning of a ‘class’ for purposes of Griffin’s
speculative extension of § 1985(3) beyond race, the term unquestionably connotes
something more than a group of individuals who share a desire to engage in
18
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 19 of 47
conduct that the § 1985(3) defendant disfavors.” Id. (explaining that a § 1985(3)
plaintiff cannot “simply defin[e] the aggrieved class as those seeking to engage in
the activity the defendant has interfered with”). The Court concluded that the class
of women seeking abortion was too gerrymandered to count as a “qualifying class”
that could satisfy § 1985(3)’s animus requirement. Id.
The Court then turned to whether the abortion clinics satisfied the qualifying
class inquiry by “alleg[ing] [that the] class-based discrimination [was] directed not
at ‘women seeking abortion’ but at women in general.” Id. The Court concluded
that it was “unnecessary to decide” whether the class of women was “a qualifying
class under § 1985(3)” because the abortion clinics could not demonstrate that the
anti-abortion activists’ “opposition to abortion reflect[ed] an animus against
women.” Id. In other words, the Court assumed “women” was a qualifying class
and held that the plaintiffs’ claim nevertheless failed under the second inquiry, that
is, whether the defendants were motivated by discriminatory animus against
women as a class. Id. at 269–70.
The second inquiry requires a defendant to have been “motivated by a
purpose (malevolent or benign) directed specifically at [the qualifying class]” by
reason of the essential characteristic of that class. Id. at 270. Because the record
did not contain direct evidence suggesting that the defendants targeted women as a
class, the Bray plaintiffs could satisfy this requirement “only if one of two
19
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 20 of 47
suggested propositions [was] true: (1) that opposition to abortion can reasonably
be presumed to reflect a sex-based intent, or (2) that intent is irrelevant, and a
class-based animus can be determined solely by effect.” Id. The Court concluded
that “[n]either proposition [was] supportable.” Id.
As to the first proposition, the Court explained that “[s]ome activities may
be such an irrational object of disfavor that, if they are targeted, and if they also
happen to be engaged in exclusively or predominantly by a particular class of
people, an intent to disfavor that class can readily be presumed.” Id. For this
reason, a “tax on wearing yarmulkes is a tax on Jews.” Id. But, the Court
explained, the anti-abortion activists’ conduct in Bray was not tantamount to a tax
on yarmulkes. According to the Court, “opposition to voluntary abortion cannot
possibly be considered such an irrational surrogate for opposition to (or
paternalism towards) women.” Id. “Whatever one thinks of abortion,” the Court
reasoned, “it cannot be denied that there are common and respectable reasons for
opposing it, other than hatred of, or condescension toward (or indeed any view at
all concerning), women as a class—as is evident from the fact that [both men and
women are on both sides of the abortion issue].” Id.
As further support for its conclusion, the Court pointed to Griffin’s use of
the term “invidious,” which means “tending to excite odium, ill will, or envy;
likely to give offense; esp., unjustly and irritatingly discriminating.” Id. at 274
20
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 21 of 47
(alteration adopted) (quoting Webster’s Second International Dictionary 1306
(1954)). In using this term, Griffin announced a high bar for plaintiffs. See id.
The “goal of preventing abortion,” the Court explained in Bray, “does not remotely
qualify for such harsh description [as invidious].” Id. The Bray plaintiffs,
therefore, failed to show that opposition to abortion could reasonably be presumed
to reflect a sex-based intent that cleared the animus bar.
Turning to the second proposition, the Court concluded that the abortion
clinics failed to satisfy the discriminatory animus element of § 1985(3)’s class-
based animus requirement with the theory that animus could be presumed because
the conduct targeted by the § 1985(3) conspiracy was conduct that only members
of the qualifying class engaged in. Id. at 271. The Court explained that even
though “voluntary abortion [was] an activity engaged in only by women, to
disfavor it [was not] ipso facto to discriminate invidiously against women as a
class.” Id. (footnote omitted). As in the constitutional equal protection context,
discriminatory animus under § 1985(3) requires that the defendant acted “at least
in part ‘because of,’ not merely ‘in spite of,’ [his actions’] adverse effects upon
[members of the qualifying class].” Id. at 272. That conclusion follows, the Court
declared, “not because . . . Equal Protection Clause jurisprudence is automatically
incorporated into § 1985(3), but rather because it is inherent in the requirement of a
class-based animus, i.e., an animus based on class.” Id. at 272 n.4. Because
21
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 22 of 47
§ 1985(3) requires “because of” not merely “in spite of” targeting, the abortion
clinics could not state a § 1985(3) claim based on the theory that the defendants’
conduct had merely a discriminatory effect on women. Id. at 273–74.
Bray’s discussion of § 1985(3)’s class-based animus requirement forecloses
Dean’s indirect race-based theory. To explain why, we must look closer at the
allegations supporting that theory. Dean alleged that Warren engaged in the
conspiracy because she was protesting police brutality against African Americans.
We will assume Dean sufficiently alleged that Warren was motivated by the
content of the protest, which was inextricably bound up with race. Taking her
allegations as true, we can conceive of two possible variants of Dean’s indirect
race-based theory. The first variant supposes that the class Warren’s conspiracy
targeted was African Americans protesting police brutality against African
Americans. The second supposes that the targeted class was African Americans.
We next turn to the two variants of Dean’s indirect race-based theory and evaluate
them under Bray.
First, based on Bray we must reject the possibility that a class of African
Americans protesting police brutality against African Americans can support a
§ 1985(3) claim. Bray squarely held that the class of women seeking abortion was
too gerrymandered to support a § 1985(3) claim because the class was defined
merely by the conduct the defendants disfavored. Dean has given us no rationale
22
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 23 of 47
for distinguishing, at the qualifying class stage of the analysis, the class of African
Americans protesting police brutality from the class of women seeking abortion,
which the Supreme Court rejected as a qualifying § 1985(3) class. And we do not
think such a line could persuasively be drawn.10
Second, we must reject the possibility that Dean can survive the class-based
animus requirement if the qualifying class is African Americans. To be sure,
African Americans is a qualifying class. The problem here, though, is that this
version of Dean’s indirect race-based theory fails on a different ground: it does not
clear the high bar established in Bray for alleging invidious discriminatory animus
against that class.
Dean did not sufficiently allege that Warren was “motivated by a purpose
. . . directed specifically at [African Americans] as a class,” that is, a “purpose that
focuses upon [African Americans] by reason of their [race].” Id. at 270.11 So, she,
10
Indeed, Dean appears to acknowledge that the class of African Americans protesting
police brutality is too gerrymandered to survive Bray. See Appellant’s Br. at 18 (characterizing
the “protected class” underlying her race-based theories as “African American[s]”).
11
To understand why this is so, it is helpful to consider the Bray Court’s analysis of when
a conspirator’s conduct is “directed specifically” at a class “as a class.” Bray, 506 U.S at 270.
The Court explained that conduct preventing women from practicing law, justified by the
stereotype that women are fragile, targets women “because they are women” and therefore
satisfies the invidious discriminatory animus requirement. See id. By contrast, the
demonstrations at issue in Bray were not “motivated by a purpose . . . directed specifically at
women as a class” because the defendants “define[d] their [actions] not with reference to
women” but with reference to the goal of preventing abortion. Id. In our view, Dean’s claim is
closer to the abortion clinics’ claim in Bray than it is to the Court’s hypothetical concerning
female lawyers prevented from practicing law because of their fragility. Like in Bray, the
conduct Dean complains of is arguably a proxy for targeting a class protected by § 1985(3) and,
23
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 24 of 47
like the Bray plaintiffs, can survive the class-based animus requirement only
indirectly, that is, if (1) opposition to cheerleaders kneeling during the national
anthem to protest police brutality can reasonably be presumed to reflect a race-
based intent or (2) Warren’s class-based animus can be inferred by discriminatory
effect. Dean’s complaint fails on both counts.
In assessing whether the first proposition is true, we must follow Bray’s
approach. Bray requires us to ask whether kneeling to protest police brutality
against African Americans during the anthem is “such an irrational object of
disfavor” and a practice “engaged in exclusively or predominantly by [members of
the qualifying class—African Americans]” that an intent to disfavor African
Americans “can readily be presumed” by opposition to that conduct. Id. In
considering that question, we must assess whether, according to the standard
outlined in Bray, there are “common and respectable reasons” for opposing the
practice (kneeling during the national anthem to protest police brutality against
African Americans)—reasons other than “hatred of, or condescension toward (or
indeed any view at all concerning), [African Americans] as a class.” Id. We must
like in Bray, neither allegations nor evidence suggests the defendants were self-consciously
intending to target a qualifying class because of the defendants’ beliefs about the class’s defining
features. In the Court’s hypothetical, by contrast, there is direct targeting of women based on a
stereotype rooted in their womanhood.
24
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 25 of 47
also assess whether class members and non-members “are on both sides of the
issue.” Id.
In our view, this analysis dooms Dean’s claim just as it doomed the abortion
clinics’ claim in Bray. Our experience informs us, at least as much as the Bray
Court’s experience informed it, that there are members of all racial groups on both
sides of the anthem-kneeling issue and that there are reasons to disfavor anthem
kneeling that have nothing to do with hatred of, or condescension toward, African
Americans. We readily acknowledge that some Americans oppose anthem
kneeling out of racial animus. But we cannot deny that some believe anthem
kneeling is unpatriotic and disrespectful and that no one should make any political
statement, by any means, during a presentation of the national anthem. For others,
their conception of patriotism may be entangled with their political beliefs, leading
them to disfavor anthem-kneeling protests concerning race more than anthem-
kneeling protests with different political messages. These individuals may, for
example, believe that African Americans do not disproportionately suffer at the
hands of police on account of race (but rather for some other reason) or that the
policy changes advocated by groups supportive of kneeling would harm—rather
than help—African American communities. The question is not whether we share
these beliefs or whether we think they withstand scrutiny, but rather whether a
sizable percentage of the American population shares them and whether, from
25
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 26 of 47
them, we “can readily . . . presume[]” a “hatred of, or condescension toward (or
indeed any view at all concerning)” African Americans as a class. Id. We think a
sizable percentage of Americans likely do hold these views, and from these views
we cannot presume a hatred of or condescension toward African Americans as a
class. Applying Bray, as we are bound to do, we conclude that the relationship
between opposing anthem kneeling as a form of protesting police brutality against
African Americans and hatred of, or condescension toward, African Americans is
insufficient to demonstrate the animus that § 1985(3) requires.12
Dean’s indirect race-based theory, then, “comes down [to]” whether she can
surmount the class-based animus requirement with a discriminatory effect theory.
Id. at 271. We understand Bray to have foreclosed that possibility for Dean. See
id. at 270 (holding that the proposition that the defendants’ “class-based animus
[could] be determined solely by effect” was “[not] supportable”). For even if some
plaintiff might prevail with such a theory, which is a question we have no occasion
to answer, we cannot say Dean’s discriminatory effect argument is stronger than
12
We recognize that the inquiry into whether there are “common and respectable
reasons” for opposing a practice may appear conjectural and dependent upon the moral
judgments of the inquirer. And we recognize that the inquiry into whether members and non-
members of the qualifying class are on both sides of the issue is both an empirical question that
Bray asks us to undertake without record evidence and ill-defined. For instance, how many
members of the qualifying class (or is it a percentage?) must be on the defendant’s side of the
issue before a plaintiff becomes unable to establish animus? And how are we to determine that?
In deciding this case, however, our duty is not to question Supreme Court precedent but to apply
it.
26
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 27 of 47
the Bray plaintiffs’ discriminatory effect argument because we cannot say that
anthem kneeling is engaged in more predominantly by African Americans than
voluntary abortion is engaged in by women. The strongest version of Dean’s
indirect race-based theory—that opposition to anthem kneeling creates a
presumption of hatred toward African Americans or that the discriminatory effect
of that opposition on African Americans can support a § 1985(3) claim—therefore
fails.
Dean’s arguments to the contrary are unavailing. Rather than grapple with
Bray, she attempts to sidestep it, arguing that it is distinguishable because it did not
implicate race, which is the central focus of § 1985(3). Dean is correct that Bray
did not implicate race and that “the central concern of Congress in enacting
§ 1985(3)” was class-based invidious animus “against [African Americans] and
those who supported them.” Scott, 463 U.S. at 835. Even so, she has failed to
persuade us either that (1) Bray’s analytical approach to § 1985(3) claims does not
control when race is implicated or (2) Bray’s analytical approach applies, but is
modified, in this context.
First, we think Bray’s discussion of § 1985(3)’s class-based, invidiously
discriminatory animus requirement, which is comprised of the qualifying class
element and the animus element, applies to § 1985(3) cases generally. See Bray,
506 U.S. at 271–72 & n.4 (concluding the “same principle” that applies in the
27
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 28 of 47
equal protection context—that discriminatory purpose requires “because of” not
merely “in spite of” targeting—also “applies to the ‘class-based, invidiously
discriminatory animus’ requirement of § 1985(3)” because that principle is
“inherent in the requirement of a class-based animus”).
Second, assuming Bray’s analytical approach controls, we do not think the
animus requirement—upon which Dean’s claim founders—is less demanding
when the § 1985(3) plaintiff alleges a class implicating race. Dean has assuredly
asserted a better qualifying class (African Americans) than the one grounding the
§ 1985(3) claim in Bray (women). Indeed, the class of African Americans is the
strongest qualifying class imaginable because protecting African Americans and
their advocates from the “massive, organized lawlessness that infected our
Southern States during the post-Civil War era” was the chief purpose of
§ 1985(3)’s passage. Bray, 506 U.S. at 307 (Stevens, J., dissenting). We cannot
say, however, that Bray offers us the latitude to apply a less demanding animus
requirement to Dean’s claim on account of the strength of her qualifying class.
Rather, Bray seems to have articulated the animus requirement for § 1985(3)
claims across the board. See Bray, 506 U.S. at 274 (holding that, because
opposition to abortion was not discrimination against women, the abortion clinics’
28
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 29 of 47
claim was “not the stuff out of which § 1985(3) ‘invidiously discriminatory
animus’ is created”). 13
Under Bray, once we conclude or assume that the plaintiff has alleged a
qualifying class, we turn to whether the animus element is satisfied. See Bray, 506
U.S. at 269–70 (assuming women are a qualifying class before turning to whether
the animus requirement was satisfied). As we have discussed, Dean’s claim,
construed as alleging the indirect race-based theory of liability, failed to allege
animus under Bray. Her indirect race-based theory, therefore, fails to state a claim.
C. Dean’s Political Class-Based Theory
Dean’s political class-based § 1985(3) theory is also precluded by Bray. The
theory is that Warren undertook the conspiracy to prevent Dean and her protesting
teammates from exercising their First Amendment rights because Dean and her
protesting teammates were members of a political class: protestors of police
brutality against African Americans.
13
Although we do not parse judicial decisions as if they are statutes, see Bryan A. Garner
et al., The Law of Judicial Precedent 2 & n.4 (2016) (explaining that not every grammatical
detail of a precedential opinion is sacred), we find it informative that the Supreme Court’s
formulations of the animus requirement consistently suggest that all § 1985(3) plaintiffs must
allege invidiously discriminatory animus, see, e.g., Griffin, 403 U.S. at 102 (“racial, or perhaps
otherwise class-based, invidiously discriminatory animus”); Scott, 463 U.S. at 834 (quoting
Griffin, 403 U.S. at 102). Not only do the commas in Griffin’s oft-recited formulation suggest
that a plaintiff alleging a racial class must also allege invidiously discriminatory animus, the
language “otherwise class-based” suggests that a racial class is just one example of the set of
classes § 1985(3) envisions and therefore that the invidious discriminatory animus requirement
applies equally to other classes cognizable by § 1985(3) as it does to racial classes.
29
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 30 of 47
The Supreme Court has long reserved the question whether § 1985(3)
prohibits conspiracies targeting political classes. See Scott, 463 U.S. at 835–37
(“follow[ing] [Griffin’s] course” by withholding judgment on the question whether
§ 1985(3) covers conspiracies targeting political classes). And the courts of
appeals are divided on this question. See Farber v. City of Paterson, 440 F.3d 131,
139 & n.7, 143 (3d Cir. 2006) (collecting cases discussing, and taking a position in,
the split). We have never answered the question with binding precedent, and this
case provides us with no opportunity to do so, for it can be resolved on narrower
grounds. See PDK Lab’ys Inc. v. U.S. Drug Enf’t Admin., 362 F.3d 786, 799 (D.C.
Cir. 2004) (Roberts, J., concurring) (“[Where] it is not necessary to decide more, it
is necessary not to decide more . . . .”). 14
We need not decide whether political classes can ever serve as a basis for a
§ 1985(3) claim because the particular political class Dean alleged does not satisfy
Bray. As we have explained, Bray forbids § 1985(3) plaintiffs from grounding
14
A published, binding case from our predecessor court suggested that conspiracies
targeting political classes were actionable under § 1985(3). See Kimble v. D.J. McDuffy, Inc.,
648 F.2d 340, 347 (5th Cir. June 1981) (en banc) (explaining that the class at issue in that case,
persons who had filed worker’s compensation claims or personal injury suits against employers,
was not—like classes “based on political beliefs or associations”—“envisioned by the framers of
[§ 1985(3)]”); see also Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en
banc) (adopting as binding all decisions of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981). We nevertheless regard the issue as undecided
because this language in Kimble was dicta—the Fifth Circuit could have reached its conclusion
that a class of persons who had filed worker’s compensation claims or personal injury suits
against their employers was not cognizable under § 1985(3) without concluding that political
classes are cognizable.
30
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 31 of 47
their claims on classes defined by the conduct the defendants oppose. 506 U.S. at
269 (rejecting the possibility that “women seeking abortion” constitutes an
actionable class because “[w]hatever may be the precise meaning of a ‘class’ for
purposes of Griffin’s speculative extension of § 1985(3) beyond race, the term
unquestionably connotes something more than a group of individuals who share a
desire to engage in conduct that the § 1985(3) defendant disfavors”). Dean has
offered us no argument that, although women seeking abortion is not an actionable
class, protestors of police brutality is—and we can think of none. See Farber,
440 F.3d at 136 (explaining that although “‘women,’ or ‘registered Republicans,’
may constitute an identifiable ‘class’ . . . a more amorphous group . . . such as
‘women seeking abortion’ or ‘persons who support political candidates’ [does
not]” (alteration adopted) (citations omitted)); Aulson v. Blanchard, 83 F.3d 1, 5–6
(1st Cir. 1996) (holding that a § 1985(3) class “[must be] comprised of a distinctive
and identifiable group” and therefore rejecting a class defined as “persons who
support other persons opposed to the politics of the old guard” (internal quotation
marks omitted)). We therefore reject Dean’s political class-based theory of
§ 1985(3) liability without opining on whether a more identifiable and discrete
political class may ground a § 1985(3) claim.15
15
Rather than attempt to distinguish Bray’s holding that women seeking abortion is not
an actionable § 1985(3) class, Dean seeks to strengthen her political class-based theory by citing
31
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 32 of 47
IV. CONCLUSION
For these reasons, we conclude that each theory by which Dean may have
overcome § 1985(3)’s class-based animus requirement fails. We therefore affirm
the district court’s grant of Warren’s motion to dismiss.
AFFIRMED.
two out-of-circuit, pre-Bray cases for the proposition that political classes are especially worthy
of § 1985(3) protection when those classes—like the one at issue in this case—are intertwined
with race. See Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984); Hampton v. Hanrahan, 600 F.2d
600 (7th Cir. 1979). We do not find Hobson and Hampton persuasive in light of Bray.
32
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 33 of 47
WILLIAM PRYOR, Chief Judge, joined by ED CARNES, Circuit Judge:
I join Judge Jill Pryor’s majority opinion in full. I write separately to explain
why, even if Tommia Dean had properly stated a claim under section 1985(3), I
would still affirm the dismissal of her complaint. Dean engaged in government
speech when she cheered in a team uniform at a football game on behalf of her
public university. Because the Free Speech Clause does not restrict government
speech, Kennesaw State University did not violate her First Amendment rights
when it prevented her from kneeling on the field. Without a First Amendment
violation, Dean’s section 1985(3) claim fails. See 42 U.S.C. § 1985(3); Great Am.
Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 372 (1979) (“Section [1985(3)]
provides no substantive rights itself; it merely provides a remedy for violation of
the rights it designates.”).
Government speech is not regulated by the Free Speech Clause. Pleasant
Grove City v. Summum, 555 U.S. 460, 467 (2009). “When the government
exercises the right to speak for itself, it can freely select the views that it wants to
express. This freedom includes choosing not to speak and speaking through the
removal of speech that the government disapproves.” Mech v. Sch. Bd. of Palm
Beach Cnty., 806 F.3d 1070, 1074 (11th Cir. 2015) (alteration adopted) (citations
and internal quotation marks omitted).
33
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 34 of 47
Although “we lack a precise test for separating government speech from
private speech,” we are required to consider three factors: “history, endorsement,
and control.” Cambridge Christian Sch., Inc. v. Fla. High Sch. Athletic Ass’n, 942
F.3d 1215, 1230 (11th Cir. 2019) (internal quotation marks omitted). The first
factor, history, “ask[s] whether the type of speech under scrutiny has traditionally
communicated messages on behalf of the government.” Id. at 1232 (internal
quotation marks omitted). The second factor, endorsement, “asks whether the kind
of speech at issue is often closely identified in the public mind with the
government, or put somewhat differently, whether observers reasonably believe
that the government has endorsed the message.” Id. at 1232–33 (citation and
internal quotation marks omitted). And the third factor, control, “asks whether the
relevant government unit maintains direct control over the messages conveyed
through the speech in question.” Id. at 1234 (internal quotation marks omitted).
All three factors strongly suggest that cheerleading at Kennesaw State
University is government speech. First, as a matter of history, cheerleaders have
traditionally been understood to communicate an important message on behalf of
their schools: cheer for our team to win the game. Cheerleading began in the
second half of the nineteenth century “as an informal, sporadic activity” by
enthusiastic spectators, but it soon “evolved” into an organized, school-
administered program “as a way to intensify spectator involvement within the
34
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 35 of 47
increasingly structured context of formal athletic competition.” Mary Ellen
Hanson, Go! Fight! Win!: Cheerleading in American Culture 10–12 (1995). “Just
as elite athletes were singled out to compete for the college, cheerleaders
representing the college were . . . selected for their tumbling skills and extroverted
personalities.” Id. at 13. Today, “sideline cheerleaders generally strive to entertain
audiences or solicit crowd reaction at sport or school functions.” Biediger v.
Quinnipiac Univ., 691 F.3d 85, 103 (2d Cir. 2012).
Second, there is no doubt that Kennesaw State University endorses the
message conveyed by its cheerleading team. On the website of its athletics
department, the university says that its cheerleaders “are part of the spirit and
tradition of [Kennesaw State University] Athletics. As student-athletes and
ambassadors for Kennesaw State University, they promote school spirit at all home
football . . . games, . . . school events, and community functions throughout the
season.” Spirit Squad, Kennesaw State University Owls,
https://ksuowls.com/sports/2019/1/3/spirit2019.aspx (all Internet materials as
visited August 23, 2021, and available in Clerk of Court’s case file). They do so
“on government property at government-sponsored school-related events.” Sante
Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000). And as “ambassadors” of
the university, they are expected to convey a message of which the university
approves. The university’s endorsement of that message is even more apparent in
35
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 36 of 47
the context of the national anthem and other pre-game rituals, which are
“inseparably associated with ideas of government.” Cambridge Christian, 942 F.3d
at 1233. “In this context[,] the members of the . . . audience must perceive [that the
message of the cheerleaders is] delivered with the approval of the school
administration.” Sante Fe, 530 U.S. at 308.
Finally, Dean’s complaint does not allege that Kennesaw State University
has relinquished control over the cheerleading squad or the message it conveys.
Ordinarily, cheerleading is a school-sponsored activity managed by school-
employed coaches and limited to students who successfully try out for the squad
and commit to attending practices and games. Cheerleaders wear school uniforms
and colors, receive school funding, train to perform choreographed acts, and cheer
from the sidelines of school property where members of the public are ordinarily
not allowed. It would be highly unusual for a public university to allow its
cheerleaders—while they are in uniform on the field at a football game—to say or
do whatever they please. For example, Auburn University does not allow its
cheerleaders to root for its rival—and reigning national champion in football—the
Crimson Tide of the University of Alabama, as much as they might want to do so.
Dean argues that the issue of government speech should not be resolved at
the motion-to-dismiss stage, but she does not identify any facts left to be developed
that could salvage her claim. “To survive a motion to dismiss, a complaint must
36
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 37 of 47
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks omitted). Dean provided no facts in her complaint that would
allow us “to draw the reasonable inference” that cheerleaders at Kennesaw State
University are engaging in private speech when they wear school uniforms and
cheer from the sidelines of a football game. Id. She did not allege a plausible
violation of the First Amendment.
Absurd results would follow if the First Amendment protected Dean’s right
to express herself while she is in uniform on the field. By this logic, Dean would
have a right to perform her own unapproved, self-choreographed cheer, to cheer
for the opposing team, or to refrain from cheering at all. She would also have a
right to stage a hunger strike, to hold up campaign posters for a political candidate,
to entertain the crowd with expressive dance, to cut up the American flag, or to
wear a leather jacket over her cheerleader uniform with the words “f*** the draft”
stitched onto the back. No one doubts that Dean has these rights as a citizen. But
when she puts on a school uniform and joins her teammates on the sidelines of a
game, she is expected to cheer for her school team. Although students do not “shed
their constitutional rights to freedom of speech or expression at the schoolhouse
gate,” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969),
they do “voluntarily subject themselves” to some limitations when they try out for
37
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 38 of 47
the cheerleading squad, Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 657
(1995).
38
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 39 of 47
JILL PRYOR, Circuit Judge, concurring,
Naturally, I agree with the reasoning and conclusions in the majority opinion
I authored. I write separately to voice my discomfort with applying the test for
class-based discriminatory animus from Bray v. Alexandria Women’s Health
Clinic, 506 U.S. 263 (1993). In my view, the test requires federal courts to engage
in an inquiry unsuited to the judiciary, and I question whether that inquiry is
justified by 42 U.S.C. § 1985(3)’s text or any independent legal principle.
The majority opinion I authored describes in detail the inquiry Bray
demands. See J. Pryor Maj. Op. at 18–29. I will review it briefly and explain why
I believe it is an inquiry unfit for the judiciary to undertake.
A § 1985(3) plaintiff must allege “some racial, or perhaps otherwise class-
based, invidiously discriminatory animus behind the conspirators’ action.” Griffin
v. Breckenridge, 403 U.S. 88, 102 (1971). Bray articulated the controlling
analytical framework for evaluating whether a § 1985(3) plaintiff satisfied that
requirement. See J. Pryor Maj. Op. at 18, 27–29. Under that framework, a
plaintiff must first allege that a “qualifying class” was the target of the § 1985(3)
defendant’s conspiracy. Bray, 506 U.S. at 269. Second, she must allege that
invidiously discriminatory animus was “behind” the conspiracy’s actions against
the class. Id. (internal quotation marks omitted). The Supreme Court and lower
courts alike have struggled with the first inquiry, for it is difficult to discern what
39
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 40 of 47
types of classes qualify for § 1985(3) protection. 1 That inquiry is not the subject of
my concern here, for there is no dispute that African Americans is the
quintessential qualifying class under § 1985(3). But, as this case demonstrates,
even when Bray’s qualifying class requirement is clearly met, applying Bray’s
framework is vexing nonetheless because of Bray’s second inquiry.
Bray’s second inquiry requires a plaintiff to demonstrate animus either
directly or indirectly. Id. at 269–70. A plaintiff demonstrates animus directly
when she demonstrates that the defendant’s conduct is “motivated by a purpose
(malevolent or benign) directed specifically at [the qualifying class] as a class,”
that is, “a purpose that focuses upon [the qualifying class] by reason of [the
characteristics defining that class].” Id. The Bray plaintiffs failed to allege direct
animus because the anti-abortion activists targeted abortion, which the Court
regarded as arguably a proxy (at best) for targeting women, and the record
1
See, e.g., United Bhd. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott,
463 U.S. 825 (1983) (describing it as a “difficult” and “close question” whether § 1985(3)
extends beyond racially motivated conspiracies to politically motivated conspiracies); Bray,
506 U.S. at 295–96 (Souter, J., concurring in part and dissenting in part) (arguing that because
equal protection principles apply to even “routine” legislative classifications, § 1985(3) “ought to
cover discriminations that would be impermissible under rational-basis scrutiny”); Farber v. City
of Paterson, 440 F.3d 131, 139 & n.7 (3d Cir. 2006) (describing the circuit split on the question
whether animus against political classes qualifies for § 1985(3) relief); Compare Lyes v. City of
Riviera Beach, 166 F.3d 1332, 1336–39 (11th Cir. 1999) (en banc) (holding that women are a
protected class under § 1985(3)) with id. at 1351 (Tjoflat, J., concurring in part and dissenting in
part) (concluding that § 1985(3) does not “cover[] conspiracies motivated by sex-based
animus”).
40
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 41 of 47
suggested that the anti-abortion activists thought of themselves as motivated by an
anti-abortion, rather than anti-women, sentiment. Id. at 270. In this case, Dean
failed to allege direct animus because Warren targeted anthem kneeling, which is
arguably a proxy (at best) for targeting African Americans, and Dean’s complaint
alleged that Warren was motivated by anti-anthem kneeling, rather than anti-
African American, sentiment. J. Pryor Maj. Op. at 23 n.11.
As Bray recognized, however, just because a defendant who targets an
activity closely associated with a qualifying class does not acknowledge that her
actions target the class (rather than merely the activity associated with the class)
does not mean that the defendant should necessarily escape § 1985(3) liability.
Bray, 506 U.S. at 270. This is because a defendant with invidious discriminatory
animus, the Court explained, may have targeted a qualifying class indirectly. Id.If the circumstances lead to an inference of animus, the plaintiff should therefore
be permitted to use § 1985(3) to hold the defendant accountable. Id. (explaining
that even though the plaintiffs failed to demonstrate direct animus, § 1985(3)
liability was still possible). So, the question becomes, under what circumstances
might invidious discriminatory animus be inferred?
Here is where the analysis goes sideways. After Bray, the primary (and
perhaps exclusive) means by which a plaintiff may demonstrate animus indirectly
is if “opposition to [the targeted activity] can reasonably be presumed to reflect a
41
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 42 of 47
[class]-based intent.” Id. at 270–73 (rejecting the argument that § 1985(3) liability
could be premised upon the discriminatory effect that targeting abortion providers
had on women). The contours of that analysis are puzzling. Bray instructs us to
consider whether the targeted activity is “such an irrational object of disfavor that,
if [it is] targeted, and [if it] also happen[s] to be engaged in exclusively or
predominantly by a particular class of people, an intent to disfavor that class can
readily be presumed.” Id. at 270 (explaining that a tax on yarmulkes could be
presumed to reflect animus toward Jews).
In my view, whether the behavior the defendant targeted is “engaged in
exclusively or predominantly,” id., by the qualifying class’s members calls for an
unusual degree of speculation and empirical guesswork from an appellate court
tasked with answering a question of law. Although it is easy to conclude in the
Bray Court’s example of the yarmulke tax that the predominant wearers of
yarmulkes are Jews, most § 1985(3) cases are not so easy. This case is a
compelling example: do African Americans predominate among anthem kneelers? 2
2
The predominance inquiry also raises a problem of scope. At what level of generality
do we characterize the conduct the defendant targeted? In this case, instead of anthem kneeling,
is it “anthem kneeling by athletes at the collegiate and professional level?” Or is it “kneeling to
protest police brutality,” more generally? Depending on which version of the question we ask,
the answer to whether class members predominantly engage in the targeted conduct may change.
See Laura Douglas-Brown and Jen King, Emory Community Unites Against Racist Violence,
Emory News Center (June 5, 2020),
https://news.emory.edu/stories/2020/06/er_vigils_coverage/campus.html (reporting that, in an
event unrelated to the national anthem, thousands of members of the Emory University
42
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 43 of 47
The predominance inquiry is not merely difficult to answer; it is also, I
think, misguided. Asking whether the targeted activity is predominantly or
exclusively engaged in by members of the protected class does not adequately
capture whether the defendant is motivated by class-based animus. A defendant
may be motivated by class-based animus even if her most immediate victims are
not members of that class. “[A] racial conspiracy against [Black people] does not
lose that character when it targets in addition white supporters of [B]lack rights.”
Id. at 271 n.2. It should therefore make little difference to the question whether the
anti-abortion activists in Bray were motivated by anti-women sentiment that some
of the anti-abortion activists’ direct victims were male medical and support
personnel. See id. By the same token, it should make little difference in this case
to the question whether Warren was motivated by anti-Black sentiment that many
individuals who engage in anthem-kneeling are white. Thus I fail to grasp why a
targeted activity must be “exclusively or predominantly” practiced by class
members for a court to infer the defendant was motivated by a “[class]-based
intent.” Id. at 270.
These are not my only objections to Bray’s articulation of the animus
element of the “racial, or perhaps otherwise class-based, invidious discriminatory
community gathered to kneel in silence for eight minutes and forty-six seconds to protest a
notorious case of police brutality, the killing of George Floyd, a Black man who suffered for that
period of time under the knee of a law enforcement officer later convicted of his murder).
43
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 44 of 47
animus” requirement. The predominance inquiry is only the iceberg’s tip. From
there the test gets harder to apply and less well-suited to judicial decisionmaking.
According to Bray, to determine whether animus can be presumed from the
circumstances, we must also consider (to an unquantifiable degree) whether there
“are common and respectable reasons for opposing [the targeted conduct],” reasons
“other than hatred of, or condescension towards (or indeed any view at all
concerning, [the class members].” Id. We consider, that is, whether the
defendant’s conduct is a “surrogate for opposition” to the class members that is
comparably “irrational” to the defendant’s motivation in the yarmulke
hypothetical. Id.
And, from there, we add to the adjudicatory mix (again, to an unquantifiable
degree) whether class members and non-members are “on both sides of the issue,”
meaning both sides of the moral or political position that presumably motivates the
defendant’s conduct. Id. In Bray that position was “opposition to abortion,” id.,
and, in this case, it is (as best I can tell) opposition to anthem kneeling as a political
statement. See J. Pryor Maj. Op. at 24.
So, after undertaking the empirical (and in my view, misguided)
predominance inquiry, to faithfully apply Bray we must ask the “common and
respectable reasons” question and the “both sides” question. The former is a
mixed descriptive/normative exercise, for we must estimate whether a sufficient
44
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 45 of 47
(undefined) number of Americans hold the views held by the defendant (that is,
whether the defendant’s hypothetical reasons are “common”) and whether the
defendant’s hypothetical reasons for opposing the conduct are worthy of respect
(that is, whether the defendant’s reasons are “respectable”). 3 Quite an inquiry—
but we are not finished yet.
Before concluding the inquiry, we must consider yet another empirical
matter—whether class members and non-members are on “both sides of the issue.”
Id. at 25. But how many class members must be on the defendant’s “side” (or how
many non-class members must be on the plaintiff’s “side”) before the “both sides”
inquiry points to an answer? Bray gives us no guidance.
It seems to me that the inquiries Bray calls for are better suited to pollsters
and perhaps political philosophers than judges. That should be particularly
troubling in this context, where cases have concerned, and will inevitably concern,
profound and controversial social issues. See Griffin, 403 U.S. at 90 (racial
terrorism); Scott, 463 U.S. at 827–28 (labor unions); Bray, 506 U.S. at 266(abortion); Farber v. City of Paterson, 440 F.3d 131, 133 (3d Cir. 2006) (partisan
politics); see also Bray, 506 U.S. at 325 (Stevens, J., dissenting) (“The [Bray]
Court’s view requires a subjective judicial interpretation inappropriate in the civil
3
Respectable, Merriam-Webster’s Unabridged Dictionary, https://unabridged.merriam-
webster.com/unabridged/respectable (last visited Sept. 1, 2021) (defining “respectable” as
“worthy of esteem or deference”).
45
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 46 of 47
rights context, where what seems rational to an oppressor seems equally irrational
to a victim.”).
Our obligation to engage in Bray’s inquiry would be lamentable, though
palatable, if § 1985(3)’s text or some independent legal principle required it. But I
have grown concerned that neither does.
Griffin’s class-based animus requirement was “derived from the statute’s
legislative history,” as Justice O’Connor observed in her dissent in Bray, and
Bray’s “fine[]” “pars[ing]” of Griffin made the class-based animus requirement an
“‘element’ of the § 1985(3) cause of action that does not appear on the face of the
statue.” See Bray, 506 U.S. at 347 (O’Connor, J., dissenting). As far as
independent legal principles, the Court’s § 1985(3) jurisprudence has been
dominated by constitutional concerns. See Griffin, 403 U.S. at 95–96, 101–02
(holding that the class-based animus requirement was necessary to avoid perceived
“constitutional shoals”); see also Bray, 506 U.S. at 299 (Souter, J. concurring in
part and dissenting in part) (explaining that the Court’s “concerns with
constitutionality . . . most probably left a lesser [§ 1985(3)] than Congress
intended”). The constitutional concerns necessitating the class-based animus
requirement have been mostly expressed as the platitude that § 1985(3) must not be
permitted to become a “general federal tort law.” Griffin, 403 U.S. at 102. I
wonder whether there is truly a real danger of turning the statute into a general
46
USCA11 Case: 19-14674 Date Filed: 09/02/2021 Page: 47 of 47
federal tort law, however, given two narrowing principles: that § 1985(3) “creates
no rights” but is rather a vehicle for enforcing a not-yet-defined set of federal
rights, Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 376 (1979),
and that it requires the plaintiff to demonstrate that the defendant “aimed at” the
right, i.e., that “impairment [of the right was] a conscious objective of the
enterprise,” Bray, 506 U.S. at 275.4 At minimum, if there are sound constitutional
reasons for giving § 1985(3) a constricted construction, they should be
articulated—not merely gestured at. See Brett M. Kavanaugh, Fixing Statutory
Interpretation, 129 Harv. L. Rev. 2118, 2146 (2016) (book review) (discussing the
dangers inherent in invoking constitutional avoidance when there are “mere
questions of unconstitutionality rather than actual unconstitutionality”).
I understand Bray to demand our panel’s result. But I worry that § 1985(3)
jurisprudence has gone awry and deserves another look.
4
The Supreme Court has not described the full set of rights that may be vindicated by
§ 1985(3), but it has suggested that a § 1985(3) action aimed at vindicating First Amendment
rights is viable if state action is implicated. See Scott, 463 U.S. at 833 (explaining that because
“the right claimed to have been infringed ha[d] its source in the First Amendment . . . [which]
restrains only official conduct, to make out their § 1985(3) case, it was necessary for [plaintiffs]
to prove that the state was somehow involved in or affected by the conspiracy”).
47