Student does not have constitutional right to participate in cheerleading
Doe v. Silsbee Indep. Sch. Dist., No. 09-41075 (5th Cir. Sept. 16, 2010)
Abstract: A U.S. Court of Appeals for the Fifth Circuit (LA, TX, MS) three-judge panel has ruled that a Texas school district did not deprive a 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.
Facts/Issues: H.S. accused two students from her high school of sexually assaulting her at a party. Those students were subsequently arrested and their cases brought before a grand jury for indictment, but the grand jury did not return an indictment. H.S. and her parents claim that the district attorney improperly advised them ahead of time that the grand jury, because of racial divisions, would not return an indictment, and “defamed” H.S. in a press conference.
As a member of the cheerleading squad, H.S. had a contractual duty to cheer for the boys basketball team, which included one of the students she had accused of sexual assault. During one game, H.S. refused to cheer for that student individually. She was told by Sisbee Independent School District’s (SISD) superintendent and the high school’s principal that she must cheer when the rest of the squad did or leave the game. H.S. then left. The cheerleading coach removed her from the team; but she was permitted to rejoin the team the following year.
H.S. and her parents filed suit in federal district court against the district attorney, SISD and various school officials. Their claims against the school officials were three-fold: (1) violation of H.S.’s Fourteenth Amendment due process rights based on a protected property interest in her position on the cheerleading squad; (2) violation of H.S.’s Fourteenth Amendment equal protection rights because the school officials had treated H.S. differently “because she is female;” and (3) violation of H.S.’s free speech rights by removing her from the squad for refusing to cheer because her decision not to cheer constituted protected speech — a symbolic expression of her disapproval of the student’s behavior. The court dismissed the claims against the district attorney and the school defendants.
Ruling/Rationale: The Fifth Circuit panel affirmed the lower court’s dismissal of the claims against both the district attorney and the school defendants. Citing a Texas Supreme Court decision, the appellate panel noted that students do not have constitutionally protected interests in participating in extracurricular activities. As a result, it found that H.S. could not assert her position on the cheerleading squad as a basis for a due process claim of deprivation of a protected property interest. In addition, it found that the cheerleading coach had valid grounds for dismissing H.S. under the terms of cheerleading contract. The panel disposed of the equal protection claim quickly, stating that H.S. had failed to provide any evidence that the school defendants’ actions were motivated by H.S.’s gender.
Lastly, the appellate panel rejected H.S.’s claim that the school defendants violated her free speech rights because her decision not to cheer was a symbolic expression of disapproval of the student’s behavior and, therefore, protected speech. Even assuming, arguendo, that the speech was protected, the panel found that the First Amendment ”does not require schools to promote particular student speech” under Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260,270 (1988). As a cheerleader H.S. ”served as a mouthpiece through which SISD could disseminate speech.” The district had no duty to promote the student’s message, ”by allowing her to cheer or not cheer, as she saw fit.” Moreover, she had voluntarily undertook a duty to cheer; her refusal to cheer constituted substantial interference with the work of the school and could be regulated under Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503(1969).
Doe v. Silsbee Indep. Sch. Dist., No. 09-41075 (5th Cir. Sept. 16, 2010)
[Editor's Note: The Fifth Circuit panel's decision has generated widespread media coverage critical of the court's ruling and the school district's actions against H.S. for refusing to cheer. The San Francisco Chronicle, reporting on the panel's decision, said the case "... provides a window into the diminishing state of free speech on campus." The article quotes SISD's attorney, Tanner Hunt, dismissing the free-speech claim as "absurd, apocryphal and fantastic." It also reports that H.S.'s attorney, Laurence Watts, plans to request the full Court of Appeals for the Fifth Circuit for a rehearing, which is known as a rehearing en banc (all active judges on the Circuit hearing and deciding the case). The article is available below.]
Source: San Francisco Chronicle, 11/5/10, By Bob Egelko
