Ex-Texas cheerleader takes appeal to Supreme Court

Thursday, March 3, 2011

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A former Texas cheerleader punished for refusing to cheer for her alleged attacker has taken her First Amendment fight to the U.S. Supreme Court. The petition in Doe v. Silsbee Independent School District raises some interesting and important First Amendment questions.

The cheerleader, known in court papers as H.S., claimed that officials at Silsbee High School violated her First Amendment and due-process rights when they punished her for refusing to cheer for a basketball player who allegedly sexually assaulted her. The player later pleaded guilty to simple assault.

In rejecting H.S.’s First Amendment claim, the 5th U.S. Circuit Court of Appeals reasoned in its September 2010 decision Doe v. Silsbee Independent School District that her act of silent protest “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.”

In her petition to the high court, filed on Feb. 22, H.S. contends that silence is not disruptive within the meaning of the Supreme Court’s fundamental student-speech decision Tinker v. Des Moines Independent Community School Dist. (1969). “H.S.’ momentary silence was admittedly not disruptive, if silence may ever disrupt,” the petition states.

She also argues that even if her silence were considered school-sponsored speech under the reasonableness standard in the Court’s 1988 ruling, Hazelwood School District v. Kuhlmeier, there is no legitimate educational purpose in forcing a student to support her attacker. The petition reads: “Even if the case is deemed to fall within the rubric of Hazelwood as school-sponsored speech, there was no legitimate educational purpose for the school officials’ egregious actions. There was no argued, nor is there any demonstrable, pedagogical purpose within the meaning of Hazelwood to mandate that H.S. cheer” for the player.

The petition raises another First Amendment issue drawn from the Court’s famous flag-salute ruling, West Virginia Board of Education v. Barnette (1943). Just as the Court ruled that the state could not compel public school students to stand, salute the flag and recite the Pledge of Allegiance, H.S.’s petition argues that school officials should not compel a student to support her attacker.

The facts in Doe v. Silsbee Independent School District are compelling and disturbing, but the case also presents fascinating First Amendment issues in the school context, including:

  • Can student silence ever be disruptive under Tinker?
  • What are the limits to the deferential, reasonableness standard in Hazelwood? (i.e., “Is there a legitimate educational purpose in forcing a student-victim to support her attacker?)
  • How far does the compelled-speech doctrine apply in the public school context?

With its compelling facts and intriguing First Amendment issues, the case may draw the high court’s attention.