Tuesday, October 04, 2011

Cheerleader Refuses to Cheer Alleged Sexual Assault Players & Is Silenced by School.

A Texas high school cheerleader claimed she was sexually assaulted during a party by two of the High School’s basketball players.  During a game that followed, the cheerleader refused to cheer for the two individuals on the team she claimed assaulted her.  The School required her to cheer, and when she refused, it removed her from the cheerleading squad.  She sued the school for retaliation and for denial of her free speech rights.

The Fifth Circuit Court of Appeals upheld the dismissal of the case by the trial court, and the issue remaining was whether the School should recover its attorney’s fees and costs because the suits, according to it, were “frivolous.”  The Court held that the retaliation suit was frivolous, and that fees could be recovered.  (About $38,000.00)  The Court also held that fees were not recoverable however in the suit for denial of free speech.  The Court reasoned that a reasonable litigant could believe that the suit had merit, and that the “silent protest” of not participating as a cheerleader was a protected speech not disruptive to ordinary school functions. 

By comparison, California free speech law is more liberal and protective of students.  See Education Code Section 48950.  This section brings parity of protection for on-campus “freedom of expression” as that enjoyed by students off-campus. 

The case is:  John Doe and Jane Doe v. Silsbee Independent School District (5th Cir. 9-12-2001).  

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