By Robert J. Romano, Esq.
A high school cheerleader in Texas sued the Silsbee Independent School District, the principal of Silsbee High School and other school officials after they removed her from the cheerleading squad because she refused to cheer for basketball player Rakheem Bolton when he took free throws during a game in February 2009.
The reason for her refusing to cheer for Bolton was due to the fact that Bolton, along with another athlete, allegedly assaulted her at a party on Oct. 19, 2008. Bolton was initially removed from the High School basketball team, but was reinstated after a grand jury failed to indict him in January 2009.
On Feb. 27, 2009, Silsbee High played a game wherein the young lady cheered for the team, but refused to cheer for Bolton when he took free throws. Because of her failure to cheer for Bolton, school officials removed her from the cheerleading squad on March 4, 2009.
The young cheerleader claimed that the school’s actions were a clear act of retaliation for her exercise of free speech and sued, alleging in her complaint that Principal Gaye Lokey, District Superintendent Richard Bain and Cheerleading Squad Sponsor Sissy McInnis “retaliate[d] against her for her expressive or symbolic speech in protesting Bolton at the free throw line.”
The First Amendment to the United States Constitution reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
She argued that under Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), students cannot be punished merely for expressing their personal views on the school premises unless school authorities have reason to believe that such expression will “substantially interfere with the work of the school or impinge upon the rights of other students.”
However, the 5th U.S. Circuit Court of Appeals is under the impression that the First Amendment and subsequent case law does not apply to cheerleaders who refuse to cheer at basketball games as evidenced by their ruling in the matter of Doe ex rel. Doe v. Silsbee Independent School Dist. WL 3736233 C.A.5 (Tex.) September 16, 2010.
The 5th Circuit rejected the claim and found that “in her capacity as cheerleader, H.S. (cheerleader) served as a mouthpiece through which the school district could disseminate speech — namely, support for its athletic teams.”
The 5th Circuit found that insofar as the First Amendment does not require schools to promote particular student speech, the school 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 ironic twist to all of this is that Rakheem Bolton was subsequently indicted on December 1, 2009 on a felony charge of sexual assault of a child. On September 14, 2010, plead guilty to a misdemeanor charge of simple assault and received a suspended sentence, two years’ probation and ordered to pay a fine of $2,500, and to perform 150 hours of community service.
Where, in my opinion, Silsbee Independent School District failed, and the reason they were eventually sued, is because they were unsuccessful balancing the rights of the two students involved. On the one hand, Rakheem Bolton is presumed innocent per the Fifth Amendment* and the school district has an obligation to respect his Constitutional rights by not punishing him based on mere accusations.
On the other hand, and where the school district failed, is that they did not respect and were unsympathetic the Constitutional rights of the cheerleader. They ignored the fact that she has a right to “expressive or symbolic speech” and instead punished her when she tried to implement such right.
The district not only punished the cheerleader, they got sued and ended up costing the taxpayers of the district thousands upon thousands of dollars in legal fees unnecessarily when the whole matter could have been avoided if they were simply sympathetic to needs and Constitutional rights of the young cheerleader, a courtesy they extended to the young basketball player.
Robert J. Romano is the founding partner of THE ROMANO SPORTS AGENCY, which specializes in representing NCAA and Professional League Coaches in all aspects of contract negotiations. For more information, visit his web site at www.romanosportslaw.com, or contact him at rjr2128@columbia.edu
* No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
