Texas cheerleader refusing to cheer for attacker sues for free speech rights

An ex-Texas high school cheerleader is appealing a verdict by the federal appeals court that held that her school was within their rights to kick her off the cheerleading squad when she refused to cheer for a basketball player accused of raping her. -db

San Francisco Chronicle
Analysis
November 5, 2010
By Bob Egelko

If you’re a high school cheerleader, you cheer for the whole team. The stars and the scrubs. The nice guys and the jerks.

But what about a player you’ve accused of raping you?

You’ve got to cheer for him too, according to a federal appeals court, because you’re really speaking for the school and not yourself.

The court dismissed a free-speech suit by a Texas teenager who was kicked off the cheerleading squad for sitting silently, with her arms folded, while her assailant shot free throws in a playoff game.

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.

A case that has gripped a small town in southeast Texas also provides a window into the diminishing state of free speech on campus.

More than 40 years after the U.S. Supreme Court declared that neither students nor teachers “shed their constitutional rights to freedom of speech … at the schoolhouse gate,” the former cheerleader’s judicial rebuff reflects a shift in perspective that has the courts showing more deference to school authorities.

“What I want out of the whole thing is for somebody to admit they were wrong,” the 18-year-old woman, identifying herself by her initials H.S., said in an interview last week. After undergoing therapy and graduating from high school, she’s taking a semester off before college, where she plans to study forensic science, partly because of what happened to her.

The basketball player has pleaded guilty to a misdemeanor assault charge, received a suspended sentence, and is making plans for college and “going forward with his life,” his lawyer said. He has denied raping H.S.

Court’s backtracking

The Supreme Court issued what appeared to be a declaration of free-speech rights on campus in 1969, when it allowed high school students to wear black armbands to protest the Vietnam War and said schools could clamp down only if students disrupted the educational process.

The court started to retrench in 1986 with a ruling allowing a high school to censor a student’s sexually suggestive speech at an assembly. Two years later, the court upheld a high school principal’s authority to prohibit articles on pregnancy and divorce from appearing in a student newspaper.

The Constitution does not require a school “to promote particular student speech,” the court said in a ruling that became a precedent for the H.S. case.

In 2007, the justices allowed a school to suspend a student for carrying a banner that read “Bong Hits 4 Jesus” at a school-approved parade near campus, saying the message could be interpreted as promoting drugs.

These days, “student speech is not given the respect it deserves. …There’s a mind-set that school officials are in total control,” said David Hudson, a Vanderbilt University law professor and scholar with the First Amendment Center who has written about the H.S. case.

Incident at party

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.

“I didn’t want to have to say his name, and I didn’t want to cheer for him,” H.S. said. “I didn’t want to encourage anything he was doing.”

She said she had done the same thing at an earlier game without incident. This time, she said, she was called into a hallway at halftime, and the district superintendent, his assistant and the school principal told her she had to cheer for Bolton or go home.

Hard time in town

Her father came out of the stands – where the fans, he said, were mocking the girl – to join his crying daughter. After a shouting confrontation with the school administrators, he, his wife and their daughter left the game.

In the following weeks, H.S. said, “it was my family against the community” of Silsbee, a town of 6,300 where “football is everything. … They were the star athletes and I was standing up to them.”

She said youths shouted “slut” at her as she drove to school with her younger sister, who soon transferred to another school.

The only response from school officials, H.S. said, was to advise her to stay away from Bolton.

Her lawsuit accused school officials of discrimination by punishing H.S. and not the players. But the central allegation was that the school had unconstitutionally penalized H.S. for engaging in an act of free expression – publicly and pointedly refusing to cheer.

Absurd’ argument

Tanner Hunt, lawyer for the Silsbee Independent School District, dismissed the free-speech claim as “absurd, apocryphal and fantastic.” Asked to explain, he said, “I don’t know why this is a news story,” and hung up.

The courts have agreed with Hunt’s legal assessment. First, a federal judge ruled in October 2009 that H.S. had not been engaging in free speech because her actions conveyed no specific message to onlookers, other than disapproval of Bolton.

The appeals court reached the same result by a different route. Even if H.S. was symbolically speaking through her silence, the court said, she had no right to do so.

“In her capacity as cheerleader, H.S. served as a mouthpiece through which (the district) could disseminate speech – namely, support for its athletic teams,” the three-judge panel said in a Sept. 16 ruling.

The district “had no duty to promote H.S.’s message by allowing her to cheer or not cheer, as she saw fit,” the court said. “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.”

Conservative panel

The panel consisted of three of the court’s most conservative judges: Emilio Garza and Edith Clement, both of whom were once on President George W. Bush’s short list for a Supreme Court vacancy, and Priscilla Owen, a Bush appointee whose confirmation was slowed by a Democratic filibuster.

The girl’s attorney, Laurence Watts, said he will ask the full appeals court for a rehearing.

Two days before the ruling, Bolton, 19, pleaded guilty to a reduced charge of misdemeanor assault. He was fined $2,500 and ordered to perform 150 hours of community service and take an anger-management course.

H.S., who testified to the grand jury that indicted Bolton, said she had accepted the plea agreement after learning that a trial was at least a year away.

“All I wanted,” she said, “was for somebody to come forward and say, ‘Yes, it happened.’ ”

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