Posted on 10/05/2010 11:33:42 AM PDT by Red in Blue PA
A former Silsbee, Texas, high school cheerleader did not have a First Amendment right to refuse to cheer for a basketball player she claimed had sexually assaulted her, a federal appeals court panel has ruled.
The student — known in court papers as H.S. — attended a party after a Silsbee High School football game in October 2008, when she was 16. She alleged that several individuals sexually assaulted her, including then-football players Rakheem Bolton, Christian Rountree and an unidentified juvenile.
In January 2009, a racially divided grand jury from Hardin County refused to indict the players, who did not have criminal records. (Later, some of the players were indicted.)
H.S. said that school officials ordered her to cheer for Bolton, who also played on the basketball team, at a February 2009 game. H.S. cheered for the team, but refused to cheer for Bolton individually. She said that Richard Bain Jr., the superintendent of schools, and Gail Lokey, who was the principal at Silsbee High, ordered her to cheer for Bolton when the other cheerleaders cheered or go home. H.S. refused, left the game, and was subsequently dismissed from the squad by cheerleading coach Sissy McInnis.
In May 2009, H.S.’s parents — known in court papers as John and Jane Doe — sued District Attorney David Sheffield, Silsbee Independent School District, Superintendent Bain, Principal Lokey and McInnis. H.S.’s parents argued that Sheffield violated the First Amendment by retaliating against H.S. for filing sexual-assault charges by revealing details about the case to the public.
(Excerpt) Read more at firstamendmentcenter.org ...
Did you ever stop to think the reason these boys weren’t indicted for sexual assualts was due to the fact there WAS NO sexual assault?
Maybe little miss cheeleader was ready willing and able?
(Yes, I “blamed the victim”. Fire at will.)
And she wants to be a cheerleader why??
To state a claim under § 1983, a plaintiff must allege that a state actor has
violated “a right secured by the Constitution and laws of the United States.”
West v. Atkins, 487 U.S. 42, 48 (1988) (citing Parratt v. Taylor, 451 U.S. 527, 535
(1981)). Appellants claim that Sheffield deprived H.S. of her right to freedom
from bodily injury and stigmatization, which Appellants allege are protected
liberty interests under the Fourteenth Amendment. Specifically, they argue that
subsequent to the grand jury’s decision not to indict Rountree and Bolton,
Sheffield “defamed” H.S. in a press conference and illegally revealed details of
the indictment hearing. Appellants are correct that “bodily integrity” constitutes
a protected liberty interest under the Fourteenth Amendment. See, e.g., Doe v.
Taylor Indep. Sch. Dist., 15 F.3d 443, 450–51 (5th Cir. 1994) (holding that a
student was deprived of a protected liberty interest when sexually assaulted by
her teacher). However, psychological injury alone does not constitute a violation
of bodily integrity as contemplated under the Fourteenth Amendment. See
Parham v. J.R., 442 U.S. 584 (1979) (involving physical confinement); Ingraham v. Wright, 430 U.S. 651 (1977) (involving corporal punishment); Spacek v.
Charles, 928 S.W.2d 88 (Tex. App.))Houston 1996) (involving corporal
punishment). Furthermore, freedom from false stigmatization does not
constitute a protected liberty interest under the Fourteenth Amendment. Our
case law “does not establish the proposition that reputation alone, apart from
some more tangible interest such as employment, is either ‘liberty’ or ‘property’
by itself sufficient to invoke the procedural protection of the Due Process
Clause.” Paul v. Davis, 424 U.S. 693, 701 (1976). Accordingly, Appellants have
not stated valid claims for violation of any liberty interests protected by the
Fourteenth Amendment.
Appellants also contend that SISD, Bain, Lokey, and McInnis deprived
H.S. of a property interest protected by the Fourteenth Amendment.
Specifically, they claim that H.S. had a property interest in her position on the
cheer squad, and Lokey and McInnis deprived H.S. of that interest when they
removed her from the cheer squad. “[S]tudents do not possess a constitutionally
protected interest in their participation in extracurricular activities.” NCAA v.
Yeo, 171 S.W.3d 863, 865 (Tex. 2005). Moreover, according to the terms of H.S.’s
cheerleading contract, her failure to cheer constituted valid grounds for her
removal from the cheer squad. Accordingly, the district court was correct in
dismissing Appellants’ claim for unconstitutional deprivation of property.
Appellants further argue that SISD, Bain, Lokey, and McInnis violated
H.S.’s right to equal protection. Specifically, they claim H.S. was treated
differently “because she is a female.” “It is well established that a showing of
discriminatory intent or purpose is required to establish a valid equal protection
claim.” U.S. v. Crew, 916 F.2d 980, 984 (5th Cir. 1990) (citing Washington v.
Davis, 426 U.S. 229 (1976), and Village of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252 (1977)). Because Appellants make no showing that H.S.’s gender motivated any of Appellees’ actions, their equal protection argument
fails.
Appellants allege Sheffield deprived H.S. of her First Amendment right to
freedom of speech by retaliating against her for filing sexual assault charges
against Bolton and Rountree. However, Appellants make no showing that
Sheffield’s alleged retaliatory acts relate to H.S.’s accusations against Rountree
and Bolton. Accordingly, the district court properly dismissed this claim on
Sheffield’s Rule 12(b)(6) motion.
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. Courts have long held that
public school students do not “shed their constitutional rights to freedom of
speech or expression at the schoolhouse gate.” Tinker v. Des Moines Ind.
Community Sch. Dist., 393 U.S. 503, 511 (1969). 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.” Canady v Bossier
Parish School Board, 240 F.3d 437, 440 (5th Cir. 2001) (citing Texas v. Johnson,
491 U.S. 397, 404 (1989)).
Appellants contend the district court erred in holding that H.S. “did not
convey the sort of particularized message that symbolic conduct must convey to
be protected speech.” 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. “The question whether the First
Amendment requires a school to tolerate particular student speech . . . is different from the question whether [it] requires a school affirmatively to
promote particular speech.” Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260,
270 (1988). In her capacity as cheerleader, H.S. served as a mouthpiece through
which SISD could disseminate speech))namely, support for its athletic teams.
Insofar as the First Amendment does not require schools to promote particular
student speech, SISD 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. Accordingly, we affirm the district court’s dismissal of Appellants’
First Amendment claim against SISD, Bain, Lokey, and McInnis.
Neither Appellants’ complaint, nor any of their subsequent filings, assert
constitutional violations against Sheffield, SISD, Bain, Lokey, or McInnis upon
which Appellants could plausibly recover under 42 U.S.C. § 1983. Therefore, the
district court did not err in dismissing Appellants’ claims. Furthermore, the
district court was within its discretion to decline to exercise supplemental
jurisdiction over Appellants’ state law claims against Bolton.
No, she wanted to refrain from cheering when he and he alone was shooting free-throws.
Why couldn’t she do this one thing? Seems reasonable enough, esp if the thug admitted to the assault.
Now, one might legitimately argue that the administration was out of line to press on this particular point (assuming the article has given us full facts, of course, which it probably has not).
But again -- as a matter of law, the 5th Circuit made the right call. The administrators have the authority to do what they did.
In January 2009, a racially divided grand jury from Hardin County refused to indict the players, who did not have criminal records. (Later, some of the players were indicted.)
Does she have the right to leave the cheerleading squad? Or is that not allowed either?
I didn’t know there’s a right to be a cheerleader.
They would not be forced, but they would be replaced. No one forces any one to participate. You either follow the program or dismisssed.
Try that logic with drinking or smoking under age or even appearing in a porno.
Same true of oral readings from a book in English class?
And the three judges were:
Garza- G.H.W Bush Appointment
Clement- G.W. Bush Appointment
Owen- G.W. Bush Appointment
She is going to school with the boys as well? What a horrible, strange situation.
When she told the 'officials' her problem didn't they her hear? All they had to do is say, "ok we will set you out this one."
How did this come to the courts? can't people work out this issues themselves?
It would also seem to me that forcing a student to “accept” using God’s name in vain as a requirement for appearing in a play would be a violation of the establishment clause.
I don’t mean to drag this thread off topic (we are still talking first amendment and whether a student can be compelled to say something or other).
There are plenty of examples of students refusing to say the Pledge of Allegiance in the morning, etc etc.
This case is coming up on “Kelly’s Court” with Megyn Kelly.
Apparently you are drafted and are forced to be a cheerleader now.
This judge should be impeached.
I think you have a very odd perspective on this issue.
She’s the victim, and she should give up what makes her happy (and quite possibly could earn her scholarship dollars for college)?
Just weird.
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