Supreme Court Refuses Appeal of 'Silent' Cheerleader

This from the School Law Blog:

The U.S. Supreme Court on Monday refused to hear the appeal of a Texas high school cheerleader who was dismissed from the squad after she refused to cheer for a basketball player accused of sexually assaulting her.

The cheerleader and her parents had sued the Silsbee Independent School District near Beaumont, Texas, on grounds that officials violated her right to equal protection and her free-speech right not to cheer in symbolic protest.

The case drew headlines after the cheerleader, identified in court papers as H.S., alleged that she was sexually assaulted at a 2008 party by the basketball player and two other young men. A state grand jury declined to indict the three defendants, and the basketball player was permitted to return to the Silsbee High team.

When the player went to the free-throw line during a 2009 game, H.S. silently refused to cheer for him along with her fellow cheerleaders. According to court papers filed by the school district, the cheerleader's refusal caused a disruption in the stands, and officials told her she had to participate in the cheers or else go home. H.S. went home, and she was removed from the cheerleading squad the next day. (She later rejoined the squad.)

A federal district court dismissed the family's claims against the school district and school officials, as well as additional claims filed against the local prosecutor. In a unanimous ruling last September, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, affirmed the dismissal.

"In her capacity as a cheerleader, H.S. served as a mouthpiece through which [the school district] could disseminate speech—namely, support for its athletic teams," the 5th Circuit panel said. "Insofar as the First Amendment does not require schools to promote particular student speech, [the district] had no duty to promote H.S.'s message by allowing her to cheer or not cheer, as she saw fit. Moreover, this act 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 family's Supreme Court appeal in Doe v. Silsbee Independent School District (Case No. 10-1056) was declined without comment from the justices.