Communication Currents

After a high school football game on October 18, 2008, a sixteen-year old cheerleader, referred to simply as H. S. in court records, attended a house party where alcohol was served. Some time after midnight, an inebriated H. S. was pulled into a downstairs room by three football players who locked the door, held her down, and sexually assaulted her. Alerted to the attack by H. S.’s screams, partygoers broke down the door to free the cheerleader while her assailants fled through a window.

The next day, Rakheem Bolton and two other students were arrested and charged with sexual assault. Pending the disposition of the criminal charges, Bolton was suspended from classes at Silsbee High School (Texas) and from the football team. Meanwhile, H. S. entered a post-sexual assault recovery program. As part of her treatment, her therapist encouraged H. S. to remain in school and to resume her regular activities. Since the athletes who had assaulted her had been suspended, H. S. donned her cheerleader uniform and returned to the sidelines.

On January 27, 2009, a grand jury concluded there was insufficient evidence to indict Bolton. Absent the indictment, the criminal charges were dismissed and the school district reinstated Bolton. This placed H. S. in a difficult position. Since Bolton also played on the basketball team, H. S.’s responsibilities as a cheerleader now required her to cheer for her assailant. Further compounding matters, Silsbee cheerleaders had a tradition of supporting basketball players by name whenever they attempted free throws. In the case of Bolton, the cheerleaders would chant “Two, four, six, eight, ten! Go Rakheem. Put it in!”

H. S. offered a measured response. While she cheered for the entire team collectively, she refused to cheer for Bolton individually. Whenever he went to the foul line, H. S. folded her arms and knelt on the sidelinenext to the cheerleading coach. During the first two games, school officials ignored this silent protest. That abruptly changed during the third game, a state tournament contest played on February 27, 2009. At halftime, the superintendent, principal, and cheerleading coach confronted H. S. and issued an ultimatum: cheer for Bolton like the other players or go home. Standing on principle, H. S. left the game with her parents and she was subsequently suspended from the squad for violating the “Cheerleader Constitution.”

At this point, the scene shifted from the schoolhouse to the courtroom. A second grand jury indicted Bolton for the sexual assault of a child on November 24, 2009. Under a plea agreement, Bolton pled guilty to a charge of simple assault (a misdemeanor carrying a punishment of a one year prison term). The judge suspended the sentence and ordered Bolton to serve two years of probation, pay a $2,500 fine, perform 150 hours of community service, and complete an anger management course. When asked about his guilty plea, Bolton dismissed the incident as a “misunderstanding.”

In a separate action, H. S. and her parents brought a civil suit against the school district claiming authorities had violated her freedom of speech. To support her claim, H. S. cited the landmark U. S. Supreme Court decision on student speech rights: Tinker v. Des Moines Independent School District (1969). In that case, the Court famously declared that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the school house gate.” The justices did acknowledge, however, that there were instances “where students in the exercise of First Amendment rights collide with the rules of school authorities.” In an effort to clearly define these circumstances, the Tinker decision acknowledged that student speech could be limited by demonstrating that it would “substantially interfere with the work of the school or impinge upon the rights of other students.”

Applied to H. S., the constitutional question is whether her silent protest would disrupt an educational activity. The first judge to hear the case sided in favor of the school district. H. S. unsuccessfully appealed to the Court of Appeals for the Fifth Circuit. In a brief opinion, the Fifth Circuit dismissed H. S.’s free speech claim, holding “student speech is not protected when that speech would ‘substantially interfere with the work of the school.’” (The Supreme Court denied certiorari.)

The Fifth Circuit’s holding is problematic on two counts. First, it does not explain how the silence of a single cheerleader during a high school basketball game could ever be disruptive. To satisfy Tinker, school officials would need to demonstrate that H. S.’s refusal to cheer for Bolton individually, while he was in the act of shooting his free throws, would somehow interfere with a school activity. Even if fans were aware that H. S. was not cheering for Bolton, it is hard to see how her behavior would trigger the sort of “material and substantial” disruption required to limit student speech under Tinker. As one commentator aptly noted, “she did not curse, yell at, or cheer against the athlete nor did she cheer for the other team. She simply remained silent.” Bolton shot his free throws and the game went on without interruption.

Second, the Fifth Circuit failed to critically assess the evidence offered by the school district. In the court papers, school officials asserted that H. S.’s silent protest caused a disruption in the stands. In the Fifth Circuit’s opinion, no attempt was made to assess either the accuracy of this claim or to discern the actual cause of the disturbance. Rather, the court simply credited the claim the district’s claim that H. S.’s refusal to cheer interfered with the game, without identifying either the threatened disorder or the actual disruption required by the Tinker test.

Tinker held that the silent expression of opinion, unaccompanied by any disruption, was entitled to First Amendment protection. While the Fifth Circuit opinion includes language taken from Tinker, it ignores themajority’s commitment to freedom of speech for student speakers. This explains why the Tinker decision emphasized that the “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” The Fifth Circuit decision simply ignored this requirement in its haste to defer to school officials.

There is, however, a larger point to this case study. The Fifth Circuit decision in the case of the cheerleader and the athlete offers insight into the sorry state of student speech rights. In the decades since the Tinker decision, federal judges have invoked the disruption standard created by the Supreme Court to decide dozens of cases involving student speech. While Tinker remains “good law,” a majority of these decisions have come down in favor of school officials. As in this instance, judges routinely cite Tinker to justify punishments levied against student speakers. This means a decision originally intended to protect student speech has been transformed into a precedent that justifies limiting student speech. For students like H. S., who have something important to say, this is a most unfortunate development.