Legal News

Court's Ruling in Failure-to-Cheer Case Deserves Boos

By Matthew Heller, Editor

The 5th U.S. Circuit Court of Appeals doesn't deserve any cheers for a ruling in which it found a high-school cheerleader's protest against an athlete she accused of raping her was not protected speech under the First Amendment.

Silsbee High School

The cheerleader, identified only as H.S., sued the principal of Silsbee (Texas) High School and other officials after they removed her from the school's cheerleading squad because she refused to cheer for Rakheem Bolton when he took free throws during a basketball game in February 2009. Bolton had allegedly assaulted her at an off-campus party the previous October.

Under Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), students cannot be punished merely for expressing their personal views on the school premises unless school authorities have reason to believe that such expression will ?substantially interfere with the work of the school or impinge upon the rights of other students.?

?It seems blatantly oppressive for Defendants to condition H.S.? participation in [the cheerleading] program on whether she cheers for her rapist when he was being individually rewarded for having been allegedly fouled in a game,? her attorney, Larry Watts of Missouri City, Texas, said in a brief. ?Bolton is no Kobe Bryant and the Silsbee High School team is not the Lakers!?

But in a Sept. 16 opinion, the 5th Circuit showed the same indifference to H.S.'s ordeal as the school officials.

The Sisbee Independent School District punished H.S. appropriately, the court said, since ?In her capacity as cheerleader, H.S. served as a mouthpiece through which SISD could disseminate speech ? namely, support for its athletic teams.? Her protest also ?constituted substantial interference with the work of the school because, as a cheerleader, H.S. was at the basketball game for the purpose of cheering, a position she undertook voluntarily.?

The idea that H.S.'s refusal to cheer for Bolton was in any way ?disruptive? of Sisbee High's educational mission is, of course, laughable. As Watts has noted, there is no requirement that all members of the school's cheerleading squad ?constantly cheer, in an acceptable volume, like automatons.?

Bolton and another athlete allegedly assaulted H.S. while partying at a classmate's home on Oct. 19, 2008. He was reinstated to the Sisbee High basketball team after a grand jury refused to indict him in January 2009.

On Feb. 27, 2009, Sisbee High played a playoff game in Huntsville where H.S. cheered for the team but refused to cheer ?Rakheem!? for Bolton when he took free throws. Officials removed her from the cheerleading squad on March 4, 2009 in what appeared to be a clear act of retaliation for her exercise of free speech.

Principal Gaye Lokey, district superintendent Richard Bain and cheerleading squad sponsor Sissy McInnis ?retaliate[d] against H.S. for her expressive or symbolic speech in protesting Bolton at the free throw line,? she said in her complaint.

Tinker broadly protects ?a student's personal expression that happens to occur on the school premises.? But the 5th Circuit treated H.S.'s protest as belonging to the less protected category of ?expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.?

?Insofar as the First Amendment does not require schools to promote particular student speech, SISD had no duty to promote H.S.?s message by allowing her to cheer or not cheer, as she saw fit,? the court said in affirming a trial court judge who summarily dismissed the case in October 2009.

The appeals court judges did not explain how allowing H.S.'s protest would have amounted to ?promoting? student speech. And just because, as a cheerleader, H.S. expressed support for Sisbee High's athletic teams does not mean her every act as a cheerleader was ?school-sponsored.?

?Defendants silenced H.S. because they did not want to tolerate her protest of Bolton and his presence on the team; not because they were concerned that H.S.? expression might reasonably be perceived to bear the imprimatur of the school,? Watts argued.

After being indicted for sexual assault in November 2009, Bolton pleaded guilty to a lesser charge of assault on Sept. 14 ? two days before the 5th Circuit released its opinion. He was sentenced to a year in jail but will remain free if he completes two years of probation.

By Matthew Heller
On Point

Full post as published by On Point News on September 30, 2010 (boomark / email).