Thomas Kithier sues MHSAA, claims harassment by ex-coach

Tony Paul
The Detroit News
Thomas Kithier

Detroit – Thomas Kithier, the future Michigan State basketball player who was ruled ineligible for his senior season at Clarkston High School, is suing the Michigan High School Athletic Association in federal court in Detroit.

The lawsuit was filed early Friday afternoon, and claims Kithier's transfer this summer from Macomb Dakota to Clarkston was mostly due to his family's "disappointment" in the academic climate at Dakota, and not primarily athletically motivated. The lawsuit also details allegations of harassment by his former basketball coach at Dakota.

Also listed as defendants in the lawsuit are Chippewa Valley Schools – the district under which Dakota falls – as well as Chippewa Valley Schools superintendent Ron Roberts, Dakota principal Paul Sibley, Dakota athletic director Michael Fusco, and MHSAA officials Jack Roberts and Thomas Rashid.

Kithier's lawyers, Ven Johnson and Steven Fishman, are seeking for Kithier to be ruled eligible Jan. 15, the start of second semester, as is standard for transfers whose waivers have been signed by both school districts, new and old. The lawsuit also says it's seeking compensatory and punitive damages, though Fishman told The Detroit News that getting Kithier reinstated – and not money – is the sole priority.

The case will be heard by Judge Marianne Battani of the United States District Court for the Eastern District of Michigan.

"This flies in the face of reason and common sense," Fishman said.

After reviewing the lawsuit Friday afternoon, the MHSAA released the following statement through spokesman John Johnson: "In the administration of school sports, we're always going to have situations with a rule in the spotlight where those involved may not like the outcome, especially when the rule hits home. But all of our member schools expect the MHSAA to enforce the rules agreed to when they join every year so as to maintain competitive equity. And we'll defend those rules as far and as hard as we have to."

Reached by The News on Friday, Dakota basketball coach Paul Tocco said, "I've got absolutely no comment" to allegations he harassed Kithier about the transfer decision, and during the time leading up to his final decision.

More: Wojo: Thomas Kithier case is one of excessive punishment

Chippewa Valley Schools has declined all requests for media interviews, and only has issued a statement Dec. 8 defending its decision to not sign a waiver for Kithier's transfer. A spokesperson for the district hadn't seen the lawsuit as of Friday afternoon and had no immediate comment, and said the district typically won't comment on pending litigation. Ron Roberts said at a recent Chippewa Valley Schools board meeting that it would not reverse its decision, and the MHSAA has said even if it did change course and sign Kithier's transfer waiver, it would not change its ruling.

A motion for a temporary restraining order or a preliminary injunction will be filed early next week, as will affidavits by Jane Kithier, Thomas' mother, and Clarkston superintendent Rod Rock – affidavits that have been obtained by The Detroit News.

Jane Kithier, a certified teacher for 29 years with a master's degree in guidance and counseling from Eastern Michigan, states in her affidavit there were unfit academic conditions at Dakota, including "classrooms in which his teachers do not have control over their classrooms which creates a chaotic and substandard learning environment for Thomas," as well as alleging some teachers often don't return tests and papers "in a timely manner."

Jane Kithier also alleges that this spring, once Dakota officials caught wind of Thomas' desire to transfer, they began harassing him. The affidavit alleges that on at least six occasions, Tocco caused Thomas to be 15 minutes late for a government class because he wanted to talk about Thomas' future plans, and alleges another teacher removed him from an English class – where he was taking a final exam – to talk with Thomas to try and convince him to stay at Dakota. Jane Kithier alleges other Dakota coaches and officials took jabs at Thomas on social media.

The affidavits also allege text messages from Tocco to Thomas' personal cell phone, calling him a liar and "sad," and implying Thomas wasn't "man enough" to talk with Tocco.

Thomas Kithier

Rock's affidavit, meanwhile, alleges a 30-year friendship between Fusco, the Dakota athletic director, and Rashid, associate director of the MHSAA, played a factor in Dakota's decision not to sign the transfer waiver, and the MHSAA's decision to rule Thomas ineligible.

"That's irrelevant," Johnson of the MHSAA said Friday, speaking of the Fusco-Rashid friendship.

Rock's affidavit claims in a July phone conversation between Rashid and Clarkston athletic director Jeff Kosin, Rashid told Kosin, "If Dakota had any balls, they would not sign that form."

Affidavits also strongly deny any "undue influence" by Michigan State coach Tom Izzo or Michigan State assistant coach Dane Fife, the son of Clarkston coach Dan Fife. Jane Kithier states Thomas did talk to Izzo when he was contemplating transferring, but that Izzo and the Fifes never tried to influence him on a final destination. The MHSAA agreed, dismissing those allegations.

Instead, the lawsuit alleges the "undue influence" was actually the Fusco-Rashid friendship.

"These actions are reprehensible in the face of a young man who deserves equal, fair and unbiased due process," Rock states in his affidavit.

Thomas, 18, a star forward, played three years at Dakota before deciding last summer to transfer to Clarkston, after considering two highly-acclaimed prep schools out of state, as well as other schools in Metro Detroit, including Troy, Utica and Grosse Pointe school districts.

Thomas' family, including parents Jane and Karel, said they began exploring transfer options as early as his sophomore year, in part because Thomas needed a math class and a media-production class that weren't offered at Dakota. This summer, the family settled on Clarkston. Thomas moved into a Clarkston apartment in early August. Around that same time, the Kithiers put their Macomb home up for sale, and later moved to be with their son, the lawsuit states.

But the transfer immediately raised some red flags at the MHSAA, through Dakota's complaint, as Thomas' AAU teammate, friend and future Michigan State teammate Foster Loyer, plays at Clarkston.

Dakota was presented the transfer waiver by the Kithiers in early August, and by mid-August, it confirmed to the family that it was refusing to sign off, claiming the move was athletically motivated. Roberts, the executive director of the MHSAA since 1986, agreed in an Oct. 31 ruling – citing comments made by Thomas in the local media that the MHSAA claimed showed his desire to play alongside Loyer. The affidavits claim the cited news articles contained no such comments. An appeal by Clarkston was denied by the MHSAA executive committee in early December, ruling Kithier out for the season.

Clarkston officials have requested the right to attend a Jan. 10 meeting by the MHSAA's executive committee, and that John Roberts and Rashid recuse themselves from future deliberations on the matter. Last week, Clarkston officials submitted additional information to be reviewed by the executive committee, the MHSAA confirmed.

The Kithiers claim Roberts of the MHSAA never interviewed any of them before making his decision. They claim that during a conversation with Rashid, they requested to speak to Roberts, and Rashid refused. The MHSAA has said it's not protocol to interview parents and athletes, but rather it's their policy to interact with the school districts in question when hearing arguments, because the MHSAA works for the schools.

The MHSAA has said it gets about two to three transfer cases a year, and that some complaints are upheld. Few make big headlines, though, because few involve star athletes with a full scholarship to play for a premier Big Ten school such as Michigan State.

Michigan is a school-of-choice state for academics, but not if athletics is believed to the motivating factor. The MHSAA membership, which includes more than 700 public and private high schools that have voluntarily joined, overwhelmingly supported the athletic-transfer rules, which have been effect since 1997.

Clarkston (5-1) is the defending Class A boys basketball champion and is the No. 1-ranked team in the state by The Detroit News, but suffered its first loss of the season on Thursday night, 80-71, to Detroit East English at the North Farmington tournament.