“The job of an actor is to play a role. The job of a cheerleader is to cheer.”
— Eugene Volokh on Doe v. Silsbee Independent School District
• • •
The Doe case, as most of my readers probably know, involves a high school cheerleader in Texas, identified in court papers as “HS,” who was kicked off her squad for refusing to cheer for her alleged rapist. She had accused the player a few months earlier, but he had remained on the school basketball team. It was school tradition for the cheerleading squad to cheer from the sidelines when players attempted foul shots, but HS refused in the case of this player — standing silently with her arms crossed. After a warning, she was removed from the squad. (The player in question pled guilty to an assault charge some time afterward.)
HS sued the school for taking her off the squad, and lost. She appealed, and lost again. Last week her final appeal was rejected.
Eugene Volokh, a constitutional lawyer I respect, thinks the courts got this one right. If this lawsuit had prevailed, he says, “cheerleaders would be free to refuse to cheer for any reason that they think sufficient.” They could refuse to cheer for teams with gay or undocumented immigrant players, or those who “belong to a reprehensible religion, or refuse to properly support our military.”
I think HS was right to refuse to cheer her attacker, and I think the school was deeply wrong in how it handled the case. (For one blogger’s assessment of just how wrong they were, read this.) Whether by dropping her assailant from the team or suspending the practice of sideline cheers or just letting her sit those particular cheers out, the school should have found a way to accommodate HS’s reasonable desire not to cheer the name of a person who had recently sexually assaulted her.
But they didn’t. And given that they didn’t, I think the courts did the only thing they could. I just don’t see a way to craft a rule that would allow HS to refuse to cheer that wouldn’t also protect a cheerleader who shouted “slut” at a single mother on an opposing team, or an actor who changed the lines of a school play to give it a particular religious message, or a football player who wrote “I HATE FAGS” on his jersey, big enough to be seen from the stands.
It’s possible, as some commenters at Volokh’s blog suggest, that HS might have had other legal remedies. It’s been suggested that she might have had — and might still have — grounds for a lawsuit on equal protection claim, or for infliction of emotional distress. I’m not in a position to evaluate those suggestions. But as a matter of First Amendment law, I think the courts got this one right.
By the way, one other element of this case is worth mentioning — that the appeals court ruled HS’s lawsuit “frivolous,” and ordered her family to pay $45,000 in legal fees to the school district. It’s my understanding that the district has the option of waiving the collection of that judgment, and I hope they do so.
Update | The ACS Blog reaches a different First Amendment conclusion than I did, and it does so by addressing a question Volokh took as a given — whether cheerleaders are “agents” of the school, and speaking on the school’s behalf when they perform as cheerleaders. Their position is that so long as a cheerleader’s symbolic protest doesn’t substantially disrupt the school’s functioning, it’s protected speech.
I’m going to have to chew on this one. It’s not obvious to me that students have a blanket First Amendment right to Sharpie messages onto their uniforms while cheering or playing sports, or to shout obnoxious comments at opposing teams while on the field. I’m attracted to the pro-speech side of the argument — as always — but I’m not sure where I come down on this particular issue.
What do y’all think?
studentactivism.net 
7 comments
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May 9, 2011 at 9:04 am
Silver Fang
I think HS has been victimized again, by a misogynistic school and court system.
May 9, 2011 at 9:47 am
Shora
I think that HS had no justice. The courts have bent over backwards, first to avoid following the laws/rules by punishing her attacker (that he had done it was under little question; he had jumped out of a window naked when he was about to get caught and then hurled slurs and threats at her when she refused to give him his clothes. After he raped her), and then to cry about the first amendment when her only way to retaliate, her only mode of justice, was to not leap up and down and cheer for the man who RAPED HER.
Who was crying first amendment when this girl was bullied by teachers and students alike? Who was crying first amendment when her PROSECUTOR dragged her name through the mud on a local radio show? The answer would be, uhm, no one.
The courts got this one wrong when they failed to prosecute the attacker. The courts got this one wrong the prosecutor failed to get a rush on her rape kit. The courts got this one wrong when the football player was allowed to plead out on a misdemeanor assault charge when he RAPED someone . The courts got this one wrong when they let another of her attackers off scott free. And which one did the courts get right?
The one that screwed over this poor girl even more. Awesome. At least the got SOMETHING right, right? Right?
May 9, 2011 at 10:01 am
Angus Johnston
I agree with you 100%, Shora. The only thing I’d point out is that the courts and prosecutors who bungled the rape case so badly were different courts from the ones who heard the First Amendment lawsuit.
The original criminal case was handled by local court officials, while the lawsuit was heard in federal court. Two different groups, two different sets of people. But you’re absolutely right about how appalling it is that everyone involved at every level failed to do anything to redress the wrongs that were done to her.
And I’ll say it again: If the school takes even a step toward trying to collect that $45,000 from her family, that’s an appalling abuse of power, too.
May 9, 2011 at 12:16 pm
Lea
It’s not obvious to me that students have a blanket First Amendment right to Sharpie messages onto their uniforms while cheering or playing sports, or to shout obnoxious comments at opposing teams while on the field.
But she didn’t do that. She was silent during the time to cheer for that one specific player. That is as mild and reasonable a compromise as you are likely to find in such a situation. That fact that the high school wouldn’t allow it is absurd.
May 9, 2011 at 1:40 pm
Angus Johnston
That’s an argument I’ve seen a few places, Lea, and I think I don’t buy it.
This was a Texas high school. HS’s rapist was a star football and basketball player. The story was a huge all over town, not just in the school. Her refusal to cheer sent a very specific, very powerful message.
Now again, I like that message. I like it a lot. I think it’s a bold and necessary and noble message, given the unconscionable position that the school put her in. I’m tremendously impressed with how HS handled this. But I wouldn’t call her act “mild” at all.
May 9, 2011 at 2:05 pm
Angus Johnston
Oh, and I should also note that in saying the protest wasn’t mild, I’m NOT saying the school shouldn’t have allowed it. Given the circumstances, I think they had an obligation — at an absolute minimum — to allow HS to register some form of protest or demurral.
I’m just saying that I don’t see the supposed “mildness” of the protest as a particularly strong argument in favor of its being constitutionally protected speech.
May 17, 2011 at 4:47 pm
Kevin T. Keith
As a mere observation … what was it that the school was demanding she had to cheer for the guy who raped her?
“2, 4, 6, 8, 10 – Come on, Raheem – Put it in!”