Originally published May 6, 2011. The Supreme Court has declined to take the case of a Texas high school cheerleader who was kicked off the squad after refusing to cheer for the basketball player whom she alleges raped her. The Fifth Circuit ruling not only upheld the school’s right to punish her for refusing to cheer, but dismissed her suit as frivolous, requiring her family to cover the school’s legal fees. The victim, who was 16 at the time, was allegedly raped at a party by Rakheem Bolton, one of her high school’s star athletes. Though Bolton was arrested, he plead guilty to a misdemeanor assault, was sentenced to probation and community service, and was back on the basketball team.
When Bolton stepped up to take a free throw, the victim, known as H.S., crossed her arms and refused to participate while the team cheered his name. School officials ordered H.S. to participate in the cheers, and when she continued to refuse, she was kicked off the cheerleading team.
Not only does this case represent a tragedy of criminal justice, with Bolton pleading guilty to an assault but not a felony and without serving a day in jail due in part to the backlog of DNA testing of rape kits, the civil suit is a gross perversion of the victim’s right to free speech. H.S. was not on the sideline screaming obscenities at her rapist while he tried to take a free throw (which would be totally understandable). She was simply standing quietly refusing to cheer for him. She did not interfere with the basketball team or any other cheerleaders. She simply stood there.
Yet, the Supreme Court declined to take the case and correct the Fifth Circuit’s assertion that H.S. was a “mouthpiece” for the school to “disseminate speech,” and that her “act constituted substantial interference with the work of the school.” The highest court in the land couldn’t get four justices to vote to even hear the argument for why it might actually be reasonable to punish rapists and not victims.
Update 9/13/2011: After being ordered to pay $39,000 in court costs for filing four frivolous claims, the plaintiff in this case won a small victory when the 5th Circuit has now overturned the finding of frivolity on the plaintiff’s free speech claim. Three other arguments based on denial of liberty, property, and equal protection and due process violations were upheld as frivolous, and the case was sent back down for a new determination of costs. Filing this case will likely eventually cost the girl and her family tens of thousands of dollars. She is now 19 and has graduated from high school.