For more on the underlying story, see here. The short version is this: A cheerleader was removed from the cheerleading squad because she had refused to cheer for a player who (she alleged) had raped her. The cheerleader and her parents sued, claiming (among other things) that the school district’s action violated her First Amendment right not to speak. The District Court and the Fifth Circuit Court of Appeals held for the school district (I think correctly), and the Supreme Court refused to hear the case. But the district court also concluded that the cheerleader’s claims weren’t just mistaken but frivolous, and ordered plaintiffs to pay the district’s attorney fees and costs; I had thought the total was $45,000, but the latest decision reports that it was a bit under $39,000 (I’m not sure why, but perhaps not all the fees and costs were being appealed, or perhaps the initial award had been reduced earlier by the district court).
Just today the Fifth Circuit held that the First Amendment claim wasn’t frivolous, though the plaintiffs’ other claims — under the Equal Protection Clause and the Due Process Clause — were indeed frivolous. It therefore remanded for the trial court to “recalculate the attorney’s fee award to reflect only ‘reasonable attorney’s fees incurred because of, but only because of, [the] frivolous claim[s].'” The court didn’t discuss what the district court described as plaintiffs’ failure to respond to the fees claim, but appellate courts often have the option of excusing such waivers, if they so choose. Thanks to How Appealing for the pointer.