A judge has declined to dismiss a lawsuit filed by a Virginia Tech soccer player who claims she was benched for not kneeling during a pregame unity ceremony, setting the stage for a trial in a case that mixes politics, sports and constitutional law.
US District Judge Thomas Cullen was not convinced Friday by Tech’s argument for summary judgment, saying there were “genuine issues of material fact” that needed to be decided by a jury.
In a lawsuit against her former coach, Charles ‘Chugger’ Adair, Kiersten Hening alleges that he became angry when she refused to kneel in support of social justice initiatives, including the Black Lives Matter movement.
After an ACC unity statement was read over loudspeakers at Tech’s 2020 season opener with the University of Virginia — with Hening remaining standing on the field while most of her teammates took a knee — Adair berated her at halftime and benched her for the rest of the game , the lawsuit claims.
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After being pulled from the starting lineup and getting little playing time in the next two games, allegedly because she chose to exercise her First Amendment rights, Hening quit the team.
Adair says in a response to the lawsuit that he didn’t even see Hening when she refused to kneel, and the actions he took were based solely on her poor play in the first half of the UVa game.
Tech’s attorney, Assistant Attorney General Hudson McClanahan, argued there was no direct evidence to the contrary.
“There is no evidence from anybody, other than a theory,” he said during Friday’s hearing in Roanoke’s federal court. “That’s what got us here today — a theory.”
However, Cullen ruled that “a fair review of the record indicates that Hening’s case is based on more than just supposition; indeed, ample circumstantial evidence undergirds her claim and gives rise to genuine issues of material fact about Adair’s true motives and actions.”
At the end of the hearing, Cullen read from his 16-page opinion, which was filed a short time later.
Hening’s attorney, Cameron Norris of Arlington, argued that Adair took four adverse actions against his client in retaliation for her refusal to kneel: He berated her during halftime of the UVa game; benched her for the second half, again criticized her during a later team meeting and cut her playing time substantially in the next two games.
“Isn’t that circumstantial evidence?” Cullen asked during the hearing.
The judge also noted that Hening started for Tech’s soccer team during her freshman and sophomore years, averaging 88 minutes per game — compared to just nine minutes in the two and a half games following the incident.
“That’s pretty striking,” he said.
Also important to the case, his written ruling stated, was the context of what happened leading up to the unity statement at the UVa game, and Hening’s quiet decision not to lend her support.
“The Virginia Tech women’s soccer team, like many organizations and groups, was divided over whether and how to publicly support various social-justice issues (including BLM) in the aftermath of the murder of George Floyd,” the opinion stated.
Adair expressed concerns about “an apparent rift” that had developed in the team, Cullen wrote, and made comments on several occasions that indicated his support for Black Lives Matter.
“All of this suggests that this apparent BLM- and social-justice divide was far more significant to Adair at the time than he would have the court believe today,” the judge concluded.
Further, he wrote, “it was no secret among the players and coaching staff that Hening was an outspoken conservative and supporter of former President Donald Trump.”
In her lawsuit, Hening contends that a “flashpoint” in the current debate occurred in 2016, when Colin Kaepernick, a quarterback for the National Football League’s San Francisco 49ers, kneeled while the national anthem was played in a protest of police brutality against racial minorities. .
While Hening supports social justice, she does not believe in the Black Lives Matter mission statement, which includes defunding the police and eliminating the nuclear family, her lawsuit states.
The case is scheduled for trial in January. Hening is seeking unspecified monetary damages, reinstatement to the team and a court order directing Adair to undergo First Amendment training.
Her attorney plans to present an expert witness, a former Division I soccer player and coach, who has reviewed the film of the UVa game and concluded that there were no significant flaws in Hening’s play.
Tech has filed a motion to exclude the testimony, saying the witness is not qualified and failed to base his opinion on an objective standard. Cullen said he will rule later on that issue.
Hening, a 22-year-old former James River High School of Midlothian standout, started 37 of 41 games for the Hokies for her first two seasons after walking on at Tech.
Adair, a 50-year-old California native and 1993 University of San Diego graduate, joined the Tech staff as an associate head coach in 2006 before being promoted to the top job after the 2010 season.
Adair is 148-75-24 in 12 seasons with the Hokies and has guided Tech to seven NCAA tournament appearances, including an appearance in the 2013 national semifinals. This year’s team went 10-7-2 and reached the NCAA tournament for the ninth time in Adair’s tenure, losing in the first round to West Virginia.
Mike Barber of The Richmond Times-Dispatch contributed to this report.
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