5th Circuit: Cheerleader can’t refuse to cheer

Friday, September 24, 2010

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A former Silsbee, Texas, high school cheerleader did not have a First Amendment right to refuse to cheer for a basketball player she claimed had sexually assaulted her, a federal appeals court panel has ruled.

The student — known in court papers as H.S. — attended a party after a Silsbee High School football game in October 2008, when she was 16. She alleged that several individuals sexually assaulted her, including then-football players Rakheem Bolton, Christian Rountree and an unidentified juvenile.

In January 2009, a racially divided grand jury from Hardin County refused to indict the players, who did not have criminal records. (Later, some of the players were indicted.)

H.S. said that school officials ordered her to cheer for Bolton, who also played on the basketball team, at a February 2009 game. H.S. cheered for the team, but refused to cheer for Bolton individually. She said that Richard Bain Jr., the superintendent of schools, and Gail Lokey, who was the principal at Silsbee High, ordered her to cheer for Bolton when the other cheerleaders cheered or go home. H.S. refused, left the game, and was subsequently dismissed from the squad by cheerleading coach Sissy McInnis.

In May 2009, H.S.’s parents — known in court papers as John and Jane Doe — sued District Attorney David Sheffield, Silsbee Independent School District, Superintendent Bain, Principal Lokey and McInnis. H.S.’s parents argued that Sheffield violated the First Amendment by retaliating against H.S. for filing sexual-assault charges by revealing details about the case to the public.

With respect to the school and the school defendants, H.S. and her parents contended that she was punished because of her “symbolic expression” not to cheer for Bolton.

In October 2009, The Silsbee Bee reported that U.S. District Judge Thad Heartfield had dismissed the lawsuit.

The newspaper reported that on Dec. 1, 2009, Bolton and Rountree were indicted by a grand jury on a felony charge of sexual assault of a child. Bolton later pleaded guilty to a misdemeanor charge of simple assault. According to the Bee, Bolton was sentenced on Sept. 14 to one year in the Hardin County Jail. Judge Bob Golden then suspended the jail time and sentenced Bolton to two years’ probation and ordered to pay a fine of $2,500 and to perform 150 hours of community service.

On Sept. 16, a three-judge panel of the 5th U.S. Circuit Court of Appeals affirmed Heartfield’s ruling in the civil lawsuit. In Doe v. Silsbee Independent School District, the unanimous three-judge panel rejected H.S.’s First Amendment claims.

The 5th Circuit rejected the retaliation claim against the district attorney, writing that the there was “no showing that Sheffield’s alleged retaliatory acts related to H.S.’s accusations against Rountree and Bolton.”

The panel spent more time with the failure-to-cheer claim, but still ruled against H.S. The panel wrote that “in her capacity as cheerleader, H.S. served as a mouthpiece through which (the school district) could disseminate speech — namely, support for its athletic teams.” According to the 5th Circuit, the school officials “had no duty to promote H.S.’s message by allowing her to cheer or not cheer, as she saw fit.” The panel also reasoned that her act of refusing to cheer substantially interfered “with the work of the school” because her job as a cheerleader was to cheer.

“I’m thinking seriously about petitioning for a rehearing en banc,” said Missouri City, Texas,-based attorney Laurence Wade Watts, who represents H.S. “There are some substantial constitutional issues in this case.”

“My client engaged in clear symbolic speech for a moment against a man who has now pleaded guilty to having assaulted her, in a setting choreographed by the school district, and yet that was not factually disruptive of the school program,” Watts said.

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