David L. Hudson, Jr. is the author of Let the Students Speak!: A History of the Fight For Free Expression in American Schools. Hudson is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law.
This week, the Supreme Court declined to hear Doe v. Silsbee Independent School District, a case in which a cheerleader was kicked off her squad when she refused to cheer for the boy she said raped her. Hudson wrote this piece for the First Amendment Center blog when the case was making its way through the courts.
These questions formed the basis for an appeal to the full 5th U.S. Circuit Court of Appeals filed on behalf of a former Texas cheerleader (known as H.S. in court papers), who was kicked off the Silsbee High School squad after she didn’t cheer for a basketball player who allegedly sexually assaulted her after a football game. The individual played on both the football and basketball teams.
Last September, a three-judge panel of the 5th Circuit rejected H.S.’s First Amendment, due-process and equal-protection claims in Doe v. Silsbee Independent School Dist. With respect to the First Amendment claims, the panel upheld a lower court’s dismissal in part because, it said, the cheerleader’s silence was disruptive. According to the panel, the lack of cheering “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 panel also reasoned: “Insofar as the First Amendment does not require schools to promote particular student speech, [the school] had no duty to promote H.S.’s message by allowing her to cheer or not cheer, as she saw fit.”
The panel cited two seminal student First Amendment decisions in its decision — Tinker v. Des Moines Independent Community School Dist. (1969) and Hazelwood School District v. Kuhlmeier (1988). In Tinker, the Court ruled that public school officials can censor student speech only if they reasonably forecast that the speech will cause substantial disruption of school activities. Under Hazelwood, school officials have more control over school-sponsored speech if their reason for censorship is reasonably related to a legitimate educational concern.
There is no way that a single cheerleader not cheering for a player at the free-throw line is disruptive. The crowd probably focused on the game, not on a single cheerleader. If the cheerleader, say, had walked to the foul line and confronted the player, that would have been disruptive. But being silent for a few moments disrupts nothing.
The full 5th Circuit reasonably could say that the student speech should be evaluated under the more deferential Hazelwood standard, in that cheerleading is a school-sponsored activity. But even the Hazelwood standard requires fundamental reasonableness. What is the legitimate educational reason in forcing a student-cheerleader to cheer for her attacker? (The player later pleaded guilty to misdemeanor assault.)
In the petition for full panel review, Larry Watts, the cheerleader’s attorney, wrote: “She cheered the entire game except for a two brief times when the accused rapist went to the free-throw line. There was no pedagogical purpose ever articulated by defendants as to why a rape victim should in addition to cheering for the team be required to cheer for the accused rapist also.”
It is not only unreasonable to force a cheerleader to cheer for her assailant, it is ridiculous. As Selena Roberts of Sports Illustrated wrote in her Nov. 8 column, “lessons remain to be learned — by the educators.”