Constitution Daily

Smart conversation from the National Constitution Center

Cheerleading and the First Amendment

March 31, 2011 by Joe Costal


As a high school teacher, I constantly witness teenager misinterpretations of the First Amendment. Disciplining a student for screaming obscenities across a crowded lunchroom comes with the inevitable rebuttal of, “It’s free speech!” Or, my favorite, “It’s a free country.”

Photo by Flickr user DeusXFloridaMany principal’s office visits involve educating students on the myriad of speech that the First Amendment does not protect. However, the Supreme Court may decide to hear a case about a Texas teenager who invoked the Constitution’s protection of her silence.

The case of John Doe vs. the Silsbee Independent School pits a former high school cheerleader against a school district she claims treated her with extreme insensitivity and callousness following a 2008 rape.

The story

The petitioner, known only by her initials H.S., feels that the school district forced her to cheer for her attacker, classmate and basketball star Raheem Bolton.

According to an October 2010 report by ABC News, Bolton and another student athlete, Christian Rountree, raped H.S. and left her “under a pool table, half-naked and sobbing.” After the incident, and her completion of a rape kit by local police, H.S. was told that backlogs would drag her case out “for years.” Despite several eyewitness accounts, and immediate arrests of both young men, an initial grand jury declined to indict Bolton. A team stand-out, he immediately returned to his basketball squad to help lift them into the playoffs.

The ramifications of this move were underscored by Sports Illustrated columnist Selena Roberts. She wrote, with disgust, in her November “Extra Point” column that Silsbee is a town with “a population of 7,431 and a football stadium that holds 7,000.”

While her squad performed their standard individual cheer for him, H.S. stepped back. She folded her arms and did…nothing.

But on the night of the away basketball playoff game, H.S. made what she considered to be a small and impromptu gesture of self-affirmation. Though she cheered for her team all night, she was overcome when Bolton headed to the foul line for a free throw. While her squad performed their standard individual cheer for him, H.S. stepped back. She folded her arms and did…nothing.

For her actions, according to her lawyer, “(H.S.) was dragged into the hallway and berated by her coach, a principal and an assistant principal.” Then, she was kicked off the team.

A second grand jury subsequently indicted Bolton for his crime, and Silsbee High expelled him…after basketball season.

The trial

When H.S.’s parents sued the school district for violating her daughter’s First Amendment rights, the claim was rejected. According to the 5th U.S. Circuit Court of Appeals, H.S.’s actions “constituted substantial interference with the work of the school because as a cheerleader, she was at the basketball game for the purpose of cheering, a position she undertook voluntarily.”

Embroiled in this case are unfortunate truths about hypocrisy. Tones of victim reversal and preferential treatment for star athletes resonate throughout this sadly common story.

What happened to H.S. was downright pathetic. The actions of school administrators were callous, but were they violations of the First Amendment?

To assess this, one must first visit the two landmark cases for student speech-rights: 1969’s Tinker vs. Des Moines Community School District and 1988’s Hazelwood School District vs. Kuhlmeier. The Tinker decision, about middle schoolers wearing anti-Vietnam arm bands to school, established that for free speech to be limited in schools, the speech must serve to “interfere” or “disrupt” the school’s functions or “activities.”

In Hazelwood, a case dealing with a principal’s refusal to print certain student articles in a school newspaper, the relevant point is that schools can limit student speech if they are doing so with legitimate “pedagogical concerns.”

Don’t be surprised if the highest court in the land decides to take on the issue of a cheerleader’s right to stop cheering. In the meantime, ask yourself the following questions:

  1. Can NOT cheering be considered a school day disruption? Is the role of the cheerleader vital enough to school activities that NOT participating somehow impedes a school’s ability to function?
  2. Because the Tinker decision specifically speaks to “activities,” basketball games would be included. Yet, was H.S.’ actions detrimental to the activity itself?
  3. Is not speaking equally as disruptive as speaking?
  4. Can a cheerleading routine be considered a “pedagogical concern?”

Joe Costal is an English teacher at Oakcrest High School in South Jersey. He is also an adjunct professor at Richard Stockton College and Saint Joseph’s University. He is currently co-writing his first book on leadership reinvention.


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