Fifth Circuit's Cheerleader Ruling Just Plain Wrong

11/17/2010 04:09 pm ET Updated May 25, 2011

You might wonder about what students today are learning in high school. Do they still teach the Pythagorean theorem? Are biology classes learning about global warming? And are cheerleaders cheering loudly enough for the people who sexually assault them?

Oh, you don't think schools should be teaching that last bit? The Fifth Circuit seems to think they should.

In 2009, a then 16-year-old cheerleader at Silsbee High School in Texas was kicked off of the squad for failing to cheer for a basketball player who she claimed sexually assaulted her. (Ultimately, the player was indicted for sexual assault of a minor, then plead guilty to simple assault in a plea bargain.)

I have to begin with an observation that, for some reason, few people seem to be making: this is wrong. I don't mean legally wrong -- although, as I will explain, it is legally wrong as well.

I mean capital W, Wrong. Big picture, human rights, basic decency wrong. The actions of the school in this case are so compassionless and repellent that even Megatron would recoil in disgust. And Megatron is an evil robot.

The law is intended to serve as the lowest level of behavior we can accept before society ceases to function. I believe that forcing a girl to cheer for someone who may have sexually assaulted her is beneath that level. I think it represents a failure in society for it to happen at all, and if the law genuinely required that, the law would need to be changed immediately, because we would be savage monsters to have such laws.

But the law does not require that, and the Fifth Circuit was wrong to suggest it does.

The Fifth Circuit's rationale for why the victim could be disciplined for not cheering? Well, in part:

Finally, Appellants claim SISD, Bain, Lokey, and McInnis violated H.S.'s right to free speech under the First Amendment because H.S.'s decision not to cheer constituted protected speech inasmuch as it was a symbolic expression of her disapproval of Bolton's and Rountree's behavior. [...] In order to determine whether conduct possesses sufficient communicative elements to bring the First Amendment into play, [we] must ask whether an intent to convey a particularized message was present, and whether the likelihood was great that the message would be understood by those who viewed it. (Citations omitted.)

What would the court want someone in this girl's shoes to do? Hold up a sign when others are cheering saying, "THIS GUY RAPED ME?" Would that be sufficiently particularized?

By requiring a particularized message to communicate a lack of support for a message, the court has managed to turn the entire concept of free expression inside-out. The girl is not trying to express a message, she's trying not to express a message of support. I think not cheering is easily understood as not endorsing the message of cheering.

This is not a case to be measured by standards of expression, it's a case to be measured by compelled speech standards. And surely, the Fifth Circuit wouldn't suggest a girl can be compelled to endorse the actions of the person who assaulted her, right?

Even assuming arguendo that H.S.'s speech was sufficiently particularized to warrant First Amendment protection, student speech is not protected when that speech would "substantially interfere with the work of the school." Tinker, 393 U.S. at 509.

By invoking the Tinker standard, the court is saying that standing silently with arms folded disrupts the work of the school. Because the work of the school, apparently, is to cheer for sexual assault.

Even if that's true (and if it is, it raises a lot more questions about the school's curricular goals), this utterly obliterates the legal meaning of "disruption."

I will posit the following: if the behavior in which you are engaged is indistinguishable from being in a coma, then you are not engaging in a disruption within the meaning of the law. Disruption is a physical event that prevents the normal operation of school. Short of possessing the power of telekinesis, it is impossible as a matter of law for this girl to have disrupted anything.

The court seems to be relying on the notion that once a girl assumes the mantle of cheerleader, she signs on to cheer for anything that happens on the court, whether it's the person who assaulted her at the free-throw line, or a terrorist event, or the apocalypse. In the Fifth Circuit's view, a cheerleader disrupts the ability of the school to impart an educational message unless she constantly expresses enthusiasm for absolutely, positively everything, even her own sexual assault.

The idea that standing silently is disruptive would be laughable, if the circumstances weren't stomach-turningly repulsive. It is, after all, precisely what the Supreme Court said students have a right to do when they don't want to recite the pledge. As the Student Press Law Center's Executive Director (and my boss) Frank LoMonte pointed out, under this ruling, students in Texas don't have to stand for the American flag, but they do have to stand and cheer for the people who assault them. (I'm glad Tom Landry isn't alive to see this.)

What the Fifth Circuit seems to be doing to distinguish cheerleading from saying the pledge is treating cheerleaders as "employees." If you were hired for the job of cheerleader, then your boss could, hypothetically, make nonstop cheering a job requirement. But high school cheerleaders aren't employees -- they're students engaged in a voluntary student activity. Students can't be fired, and the primary beneficiary of the student-teacher relationship should always be the student.

This should be troubling for parents and students alike, because if the court is operating under the assumption that students in student activities are employees, then the leaders of activities in public schools can direct students what they must say and believe at school in the same way your boss can tell you what you must say and believe at work.

Let that sink in for a moment. If the Fifth Circuit's reasoning holds water, then your son or daughter can be kicked out of any club, activity or sport for expressing a belief that differs from whatever the club adviser happens to believe. To me, that sounds suspiciously like the opposite of what the Supreme Court intended in Tinker, when Justice Fortas noted that students do not shed their constitutional rights by entering a school. If you can be kicked off of a team for not agreeing to believe what your coach believes, is anything left of the Bill of Rights?

It is not the role of a school to tell students what they must say, think or believe. And I want to make one more point about this kind of activity in the context of bullying.

Bullying is the abuse of an imbalance of power to the detriment of the powerless. Yes?

And these are just the stories that have made it into the media. I know dozens and dozens of cases I can't talk about, and I know that for every story we hear, there are 10 that we don't, because the parents are afraid that administrators will retaliate by giving their child a bad recommendation in his or her college applications.

Now, school officials across the country are holding up their hands, showing their stigmata, and proclaiming that they will protect students from cyberbullying, if only we give them more power.

Before we do that, we should ask ourselves: Who are the bullies? Have school officials demonstrated they can be trusted to make sound judgments about students' off-campus lives if this is the way they run their schools?

Who, ultimately, is abusing their power to the detriment of the powerless?