A high school cheerleader only known publically as H.S. has claimed that officials at Silsbee High School in Silsbee Texas violated her First Amendment rights when they punished her for refusing to cheer for a basketball player that allegedly sexually assaulted her in a case known as Doe vs. Silsbee Independent School.
H.S.’s story is as follows: After a high school football game in October 2008, H.S. contends she was sexually assaulted by then-football player Rakheem Bolton. Bolton would later plead guilty to the misdemeanor charge of simple assault and was sentenced in Dec. 2009 to serve two years of probation, a $2,500 fine and had to serve 150 hours of community service.
But while the case was still in progress in Feb. 2009, H.S. was a cheerleading at a Silsbee basketball game, a game where Bolton was on the team H.S. was cheering for. H.S. cheered for the team, but when Bolton was shooting from the foul line, the time had an individual cheer for Bolton. Instead of participating in said cheer, H.S. folded her arms and remained silent. H.S. was later pulled aside by the principal and told to either participate in the cheer or go home. She went home and was later dismissed from the team.
Her parents would later sue the district in the 5th U.S. Circuit of Appeals, saying the school suppressed their daughters right to “symbolic expression.” The First Amendment issue at hand is whether H.S.’s decision not to cheer for Bolton was disruptive in a school setting. First Amendment rights can be suppressed to extent if the speech or conduct is deemed disruptive or infringes on the rights of others. Two Supreme Court cases that establish this precedent are Tinker vs. Des Moines Independent School District (1969) and Hazelwood School District vs. Kuhlmeier (1988).
The Tinker case dealt with the subject of students being suspended for wearing black armbands to protest the Vietnam War. The Court ruled that the armbands, a silent form of protest, should be permitted because they were not disruptive and did not infringe on the rights of others. In the Hazelwood case, a case involving the principal of Hazelwood High School censoring the student newspaper that was about to publish articles pertaining to divorce and student pregnancy. The Court ruled in favor of the school citing that student media can be suppressed if the school can prove the published content can cause a substantial disruption.
A three-judge panel in the Circuit of Appeals cited the Hazelwood case as the reason for dismissing H.S.’s case against the school district. The panel ruled that as a cheerleader, H.S. served as a mouthpiece for the district that could disseminate the message of the district, which was to support athletics and by not doing her job, she was disrupting school activity.
On Feb. 22, 2011, H.S.’s family and lawyers made an appeal for certiorari to the U.S. Supreme Court. The current status of the case is that on March 28, 2011, the court has accepted filed briefs in opposition from both the Silsbee School District and H.S.’s representatives.
In my opinion, H.S.’s silence should not be deemed disruptive. Under Tinker, silent, symbolic speech does not disrupt school activity and no one’s rights was infringed upon when H.S.’ decided to not participate in one particular cheer.
UPDATE: On May 2, 2011 the U.S. Supreme Court denied H.S's petititon for certiorari.
Supreme Court Docket: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-1056.htm
First Amendment Center: http://www.firstamendmentcenter.org//commentary.aspx?id=23947&SearchString=silsbee