The Case of the Cheerleader, the Alleged Rapist, and the First Amendment

I’ve heard quite a bit in the last few days about Doe v. Silsbee Indep. School Dist., the case in which a high school cheerleader was allegedly raped by a football and basketball player from the same high school, refused to cheer for him when he was playing, was kicked off the squad, and sued claiming this violated her First Amendment rights not to be compelled to speak. The cheerleader lost, and this past Monday the U.S. Supreme Court refused to rehear the case.

The Fifth Circuit’s decision rejecting the First Amendment claim sounds absolutely right to me. In school, you are compelled to speak all the time — on exams, when answering questions in class, when taking positions that are you required to take for the sake of argument, and so on. This is especially so when you get involved in special programs that require you to speak: drama class, the high school newspaper, debate, cheerleading, sports programs that require you to wear uniform with symbols on them, choruses, and so on. The job of an actor is to play a role. The job of a cheerleader is to cheer. The Supreme Court has never held that the First Amendment materially constrains public schools’ ability to shape the speech that is part of the school curriculum, whether purely academic or otherwise. At most, there is a highly deferentially applied requirement that the speech compulsion be ““reasonably related to legitimate pedagogical concerns.” And when one applies this to a non-purely-academic program such as cheerleading, it seems to me that the school could equally require speech when the requirement is reasonably related to producing the particular speech product that the school is trying to produce.

It is true that one of the leading compelled speech cases — West Virginia Board of Education v. Barnette (1943) — involved public school students, and struck down a law requiring them to say the Pledge of Allegiance. One of the weaknesses of the opinion, in my view, is that it speaks broadly of the unconstitutionality of speech compulsions without acknowledging how common they are in public schools, and and without distinguishing the Pledge from the normal compulsions. The opinion might well be defensible on the grounds that the Pledge is different in various ways; but the Court should have done more to explain its rationale (which presumably was that the Pledge should not be seen as part of the actual school curriculum, or of a voluntarily chosen quasi-curricular or extracurricular program).

Nonetheless, later cases, especially Hazelwood School Dist. v. Kuhlmeier, make clear that the school’s power to shape student speech that’s part of the school’s curriculum is extremely broad. And while Kuhlemeier involved a speech restriction, the Court has long said that speech compulsions are judged much the same way as speech restrictions.

Moreover, note the implications of a contrary decision. If people have a right not to be compelled to speak, that is a right that they become free to exercise based on their own preferences, regardless of whether their justification seems sound to others. So such a right wouldn’t just mean that cheerleaders may refuse to cheer for players who are accused of attacking the cheerleader; rather, cheerleaders would be free to refuse to cheer for any reason that they think sufficient.

They could refuse to cheer other players because they think the other players are sinful homosexuals, or sinfully promiscuous, or belong to a reprehensible religion, or refuse to properly support our military, or whatever else; they could refuse to cheer “whom do we appreciate” (the kids all say “whom,” right?) for a rival team because they disapprove of the team’s nickname, or think the team was unsportsmanlike, or disapprove of the team’s including some alleged illegal aliens or alleged racists or what have you. Likewise, singers in a school chorus would have a constitutional right to conspicuously refuse to sing those passages that they don’t want to sing (because they see those passages as immoral, offensive, or what have you). Whether or not it’s a good idea for a school to choose to exempt people in some such situations, a constitutional right not to be compelled to speak would require exemptions in all such situations. That can’t be right; First Amendment doctrine doesn’t require it; and the Fifth Circuit was correct in rejecting the constitutional no-speech-compulsions argument.

Finally, note the timeline of the events in the case (Just One Minute has a good summary) and the nature of the cheering required. As a Sports Illustrated article on the case points out:

  1. In Nov. 2008, the cheerleader was allegedly raped by the football/basketball player (Rakheem Bolton) and two others.
  2. The alleged attackers were barred from campus.
  3. In Jan. 2009, a grand jury refused to indict.
  4. The school let the alleged attackers back.
  5. In late Feb. 2009, the cheerleader refused to cheer for the player. (“By custom [of the cheerleading squad] Tigers cheerleaders support any player at the foul line by shouting his name. In the first half Bolton was fouled twice. H.S. had been cheering as usual, but each time Bolton went to the line, in a peaceful protest, she folded her arms, stepped back and remained silent while her squad cheered, ‘Go, Rakheem!'”)
  6. At that point, the cheerleader was told to cheer for Bolton, or else she would be taken off the squad; she refused, and was indeed taken off the squad (though she “was later permitted to rejoin the cheerleading squad if she would follow its rules”).
  7. In Nov. 2009, another grand jury indicted Bolton and another alleged attacker “on charges of sexual assault of a minor.”
  8. In Sept. 2010, Bolton “plead[ed] guilty to a lesser offense, simple assault.”