Fifth Circuit Fines Cheerleader For Not Cheering For Her Sexual Harassers

Ken AshfordCourts/Law, Women's IssuesLeave a Comment

The United States Court of Appeals for the Fifth Circuit, one of the most right-wing courts in the country, sanctioned a former high school cheerleader because she brought a lawsuit claiming that she shouldn’t be required to cheer for her alleged rapist

The former cheerleader and her family are appealing the ruling by the Fifth U.S. Circuit Court of Appeals in New Orleans, which includes an order to pay the school district’s legal fees on the grounds their suit was far-fetched and frivolous. […]

H.S., then 16, attended a party in her hometown of Silsbee, Texas, in October 2008. She said she was dragged into a room, thrown onto the floor by several youths and raped by Rakheem Bolton, a star on the school’s football and basketball teams.

Bolton and a teammate were arrested two days later, but were allowed to return to school after a county grand jury declined to indict them. They were later indicted on sexual assault charges, but in the interim came the February 2009 incident on the basketball court.

H.S. joined in leading cheers for the Silsbee High team. But when Bolton went to the foul line, and the cheers included his name, she stepped back, folded her arms and sat down.

The cheerleading coach removed her from the squad for the rest of the year.  And she sued.

I've read the opinion (PDF), trying to make sense of the Fifth Circuit's reasoning.  Now, some of it I agree with.  For example, I don't think H.S. had what could be called a "property interest" in her cheerleading position.  I mean, I see why her lawyer put that claim in there; it's just not a very good one.

But I was curious about the First Amendment argument.  H.S. asserted that her decision not to cheer was protected free speech, and so the school's decision to bump her from the squad was punishment for exercising free speech.

The lower court held that H.S.'s symbolic speech was not particularized enough to be considered protected speech.  In other words, by sitting down and not cheering, most objective observers would not know what she was "saying", and therefore that speech isn't protected by the First Amendment.

The Fifth Circuit apparently didn't go along with the lower court on that, choosing to breeze by it.  However, the Fifth Circuit went on to write these bizarre paragraphs:

Even assuming arguendo that H.S.’s speech was sufficiently particularized to warrant First Amendment protection, student speech is not protected when that speech would “substantially interfere with the work of the school.” Tinker, 393 U.S. at 509. “The question whether the First Amendment requires a school to tolerate particular student speech . . . is different from the question whether [it] requires a school affirmatively to promote particular speech.” Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260,270 (1988).

In her capacity as cheerleader, H.S. served as a mouthpiece through which SISD could disseminate speech – namely, support for its athletic teams. 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. Moreover, this act 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. Accordingly, we affirm the district court’s dismissal of Appellants’ First Amendment claim against SISD, Bain, Lokey, and McInnis.

[Emphasis mine].  Now that's just messed up.  I don't think cheerleading constitutes the "work of the school" and even if it does, losing one cheerleader for part of the time does not constitute "substantial interference" with that work.

in other words, pity the school, whose First Amendment rights were taken away by the dumb cheerleader who refused to do her job.  That's what the Fifth Circuit is saying.

I can understand a legal argument for denying the cheerleader "H.S." her day in court.  It goes something like this: one, you have no right to be on a cheer leading squad; it is purely voluntary and by doing so you agree to abide by the rules of the team insofar as they are non-discriminatory. Two, one of the rules of the team, I imagine, is to cheer for the players. Three, if you cannot abide by that rule, you have the option to quit; as no one can physically force you to cheer, or you can be removed from the team. Four, you do not have the right as a member of the team to advance your own views on behalf of the team.

But I don't think the lawsuit was so frivolous that the cheerleader failed to present an arguable claim.  She shouldn't be burdened with the school district's court costs.