Texas student removed from cheerleading team for refusing to cheer plans appeal to U.S. Supreme Court

The attorney for a cheerleader who was kicked off the squad for refusing to chant the name of an athlete she said had raped her plans to petition the U.S. Supreme Court to reinstate her free-speech suit against Silsbee school district, reports the San Francisco Chronicle. The suit drew national media attention following the U.S. Court of Appeals for the Fifth Circuit’s ruling in September 2010 that the cheerleader, identified as H.S., was speaking for the school, not herself, and had no right to remain silent when called on to shout the athlete’s name. Legal commentators said the ruling illustrated courts’ increasingly restrictive view of free speech on campus.

Upholding a federal district court’s dismissal of the suit, a Fifth Circuit three-judge panel declared that a cheerleader serves as a “mouthpiece” for the school.  The panel ruled the school district “had no duty to promote [the cheerleader's] message,” and her silence “constituted substantial interference with the work of the school.” H.S.’s attorney, Laurence Watts, has confirmed that he will appeal to the U.S. Supreme Court. He contends, based on student speech precedent, that H.S.’s suit should not have been dismissed because there was no evidence that her refusal to cheer “was substantially interfering with the work of the school.”

Source: San Francisco Chronicle, 12/23/10, By Bob Egelko

[Editor's Note: In September 2010, the three-judge panel ruled that Silsbee Independent School  District (SISD) did not deprive the high school student of any due process property interest; nor did it violate the student’s equal protection or free speech rights when school officials removed her from the cheerleading squad for refusing to cheer for a member of the boys basketball team, whom she had accused of sexually assaulting her. The panel, in a brief per curiam (“by the court,” unsigned by identified justices) opinion, concluded that because students possess no constitutional right to participate in extracurricular activities, the student was not deprived of a protected property interest in violation of her due process rights under the Fourteenth Amendment. It also rejected her equal protection claim because there was no showing that the school officials were motivated by her gender. Lastly, the panel held that her removal from the cheerleading squad for refusing to cheer did not implicate her free speech rights because as a cheerleader her speech was school speech, not private student speech. A summary of the opinion is available below.]

NSBA Legal Clips archives on DOE v. SISD

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