Cheerleader taking free-speech suit to high court (dismissed for refusing to cheer for rapist)

[alp227]

Source: San Francisco Chronicle

(12-22) 12:40 PST WASHINGTON -- A Texas high school cheerleader who was kicked off the squad for refusing to chant the name of an athlete she said had raped her will ask the U.S. Supreme Court to reinstate her free-speech suit against the school district, her lawyer says.

The cheerleader and her parents are also challenging federal court rulings that found the suit to be frivolous and ordered them to reimburse the district more than $45,000 in legal costs.

The case has drawn national attention since a federal appeals court in New Orleans ruled in September that the cheerleader was speaking for the school, not herself, and had no right to remain silent when called on to shout the athlete's name. Legal commentators said the ruling illustrated courts' increasingly restrictive view of free speech on campus.

The girl, identified by her initials H.S., was 16 when she said she was raped at a party in her southeast Texas hometown of Silsbee in October 2008. She identified the assailant as Rakheem Bolton, a star on the Silsbee High School football team.

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/12/22/BA2U1GTV1N.DTL

---

Bolton only got a SUSPENDED SENTENCE for misdemeanor assault.

[Poll_Blind]

1. GOOD. I hope she wins! n/t

PB

[left coaster]

2. Hell yes! nt

[NewJeffCT]

3. I wonder if she has a chance with the SCotUS so right wing?

I'm guessing it would be a 5-4 decision against her.

[tomm2thumbs]

5. could be

but getting this in the public record with a close decision will pave the way for court cases in the future and make sure that the person who committed the crime will not be able to crawl into the woodwork and go unnoticed...

it's a win/win in my opinion however the case goes

[customerserviceguy]

11. There are three women on the Supreme Court

The other six will have to deal with them if they don't want to take this seriously.

[toastbutter]

19. There is nothing to take seriously

It's a frivolous suit, which is why it was dismissed as such. While acting in her capacity as cheerleader, her speech is rationally restricted. She can't make up her own cheers, her own uniform, wear "Close Guantanomo" pins on her cheerleading etc. She has wide latitude of free speech, but NOT while acting in official capacity. Pretend she was a cop or firefighter. Same rules apply.

[customerserviceguy]

35. That's interesting

A cheerleader is the same as a cop or a firefighter.

Next time you're in trouble, I hope somebody comes up to you and says, "Gimme a nine! Gimme a one, Gimmie another one!"

[toastbutter]

42. I didn;'t say they were the same.

That's a false conclusion. Understand the concept of ANALOGY. Look it up. It doesn't mean things are the same. It means a comparison can be drawn.

A cop cannot do and say a lot of things WHILE IN UNIFORM, because he is an official and visible representative of the state. These hold true even if off-duty but in uniform (say the shift is over and he hasn't changed out of his uniform yet). A perfect example would be the wearing of a religious symbol along with his uniform. Clearly, he can wear one off duty.

A cheerleader wears a uniform and is a uniformed representative of the school. The job is to cheer for the team. the WHOLE team. A cheerleader certainly could walk around with a "close guantanamo" pin, but NOT while in uniform.

That's why it's an ANALOGY.

[Name removed]

43. Deleted message

Message removed by moderator. Click here to review the message board rules.

[toastbutter]

44. yawn

Nice try.

[progressoid]

4. I can't believe this happened in the first place

But then to have to go to court for it?

[molly77]

6. I can believe it happened in the current political climate.

Texas seems like a likely place for a cheer leader being expected to cheer for a boy who raped her.

Women are usually so ashamed and guilt filled they just want the experience to go away. Making it easier on the perp to do it again. I am very proud of the young woman.

[toastbutter]

8. the ruling was correct

1) he was never found guilty of raping her
2) he was found guilty of assault

Tt has not been adjudicated in civil or criminal trial, that he is in fact a rapist.

People can repeatedly refer to him as such, but it doesn't make it a fact, let alone a judicially recognized fact. She has every right to say what she wants about the guy (w/in the bounds of libel and slander laws) and she has every right to quit the cheerleading squad. She does not have the right to use her position in the cheerleading squad to protest him, any more than it would be a free speech case if she wore a "close Guantanamo" pin on her cheer uniform and was told to remove it.

While acting AS a cheerleader, she must cheer for the team. She has no 1st amendment right to choose who on the team who not to cheer for.

As for the continual reference to this guy as a rapist, all I have seen are allegations. Not everybody accused of a crime is in fact guilty. I know that's a shocking concept. Rapists are scum. But I don't know if this guy is or isn't a rapist.

[tammywammy]

10. I also thought at the time when she was kicked off he hadn't been charged with a crime. n/t

[toastbutter]

12. and to take it a step further

He has now been convicted of a crime. Misdemeanor assault. And she is the victim. Those facts are not in dispute. But clearly, she does not have the right WHILE ACTING IN HER CAPACITY AS A CHEERLEADER, to publically play out her displeasure for him. Of course she has a right to say bad things about him. Of course she has a right to write a blog about her feelings, etc. Of course she has a right to do all sorts of stuff to express her feelings about him. I don't think anybody denies that. It's a forum argument. She doesn't have a right WHILE ACTING IN HER "official" CAPACITY AS A CHEERLEADER to do so. The very purpose of a cheerleader is to ... ... ... cheer for her team. Clearly, it's a bad situation to be a cheerleader cheering for a team wherein you claim one of the members thereof raped you. But as long as it is not school district policy that misdemeanor assault is a disqualifyer for being a football player, the school is doing the right thing.

I would assume (I could be wrong) that if he was found guilty of rape, a felony, he would be disqualified from the team, so the whole issue never would have arisen. But the simple fact is - he was NOT. He is not a rapist, in the eyes of the school, or the eyes of the law. He *is* a rapist in her eyes, which is a different thing.

[tammywammy]

13. The reason he was on the team still is because he wasn't charged at the time. n/t

[uppityperson]

15. Never went to trial as he plea bargained to a lesser charge & ruling was wrong

He wasn't found guilty because it didn't go to trial. He plea bargained his way to a lesser charge. This doesn't mean he didn't rape her, but that the judicial system decided for some reason to not have a trial but allow him to plead guilty to this lesser charge. "Not everybody accused of a crime is in fact guilty" of course. But in this case, from reading what we have, I think most of us think he is.

From OP's link

The high court ruled in 1969 that school officials could restrict student speech only if it disrupted the educational process. The court narrowed that ruling in 1988 when it allowed a high school principal to censor the student newspaper and said schools have no duty to promote student speech.

Watts argued in a legal filing that H.S.'s suit should not have been dismissed because there was no evidence that her refusal to cheer "was substantially interfering with the work of the school."

Her suit should not have been dismissed, according to court rulings. She DOES have a right to free speech, to not cheer, unless that "substantially interfered with the work of the school" and since there were other cheerleaders, it didn't.

Welcome to DU, may you read and learn as well as lecture.

[alp227]

16. names of those cases

1969: Tinker v. Des Moines Independent School District (SCOTUS made disruption a justification for restricting student speech, it was about students wearing black armbands to protest the Vietnam War)
1986: Hazelwood v. Kuhlmeier (schools could censor student newspapers)

[toastbutter]

18. I'm aware of those cases and others

(Bong Hits for Jesus case, etc.)

What people are failing to understand is that this not about "student speech" qua student speech. The distinguishing issue is that this is speech conducted WHILE IN UNIFORM AND ACTING IN THE CAPACITY OF A CHEERLEADER. If she made up her own cheer and started chanting "Dude raped me and I got no justice" the school would also have authority to censor her, and even fire her from the cheerleading squad.

And especially considering the very job of a cheerleader is to cheer for the players, the case is especially obvious, which is why it was dismissed as frivolous.

If people can't distinguish this element of the case, then they won't come to the right conclusion

[toastbutter]

17. it doesn't mean that he did or didn't rape

her which was exactly my point. What I said is that there has been no adjudication that he is a rapist. As far as the law goes, and the school has to go with the legal determination - he is not a rapist.

Whether he actually did or didn't rape her is not the issue. What IS the issue is the judicial determination. Most of "us" can think whatever you want. I don't know enough to know one way or the other whether he actually raped her. The one thing I know indisputably is that he was not convicted of it.

Prosecutors make charging and plea decisions based on a host of factors, but largely based on the evidence. The fact that he was allowed to plea to misdemeanor assault most likely meant that there was not enough evidence to likely get a conviction.

---Here's what you don't get. This is not "student speech". When she is acting IN HER CAPACITY AS A CHEERLEADER she has much more limited freedom as to her speech. Clothing, for example, is a form of speech. She doesn't get to choose her particular cheerleader uniform apart from the one mandated for all cheerleaders.

Again, that's the distinction most people are missing. WHile acting AS A CHEERLEADER, her speech and other behavior can be significantly restricted beyond that even on campus activity when she is NOT.

[NashVegas]

21. "Two, four, six, eight, ten, come on, Rakheem, put it in." Is What She Was Ordered to Scream

While the school has the legal right to boot her from the squad, morally, they fucked up. When a teenage girl tells you there's a kid on the court who raped her, you don't frigging order her to scream a cheer like that unless you are a complete asshole.

Ya know, I think the fact she is refusing to back down, just might indicate she's been truthful. That, and the several witnesses who tried to break into the room where she was being raped.

Her refusal to cheer for that one person wasn't going to turn the world upside down. The school had the choice to accommodate a reasonable compromise - she cheered for the team and the other individual team members, and stayed silent while others shouted out her rapist's name. It would have been a decent way to let the situation play out in school while it went through the courts.


Instead, papers all over the country are reporting this:

High school football star Rakheem Bolton and two others were indicted for sexual assault of a child–identified only as H.S.–at a post-game party in 2008. According to H.S.–a fellow student and cheerleader at Silsbee High–Bolton, football player Christian Rountree and another juvenile male forced her into a room, locked the door, held her down and sexually assaulted her. When other party-goers tried to get into the room, two of the men fled through an open window, including Bolton, who left clothing behind. Bolton allegedly threatened to shoot the occupants of the house when the homeowner refused to return his clothes.
http://msmagazine.com/blog/blog/2010/10/15/cheerleader-required-to-cheer-for-man-who-assaulted-her/


It was legal to refuse to serve black people at lunch counters until some people were willing to risk arrest to change things. I think this girl is fantastic and I commend her family for supporting her.

[toastbutter]

22. Again, I'm not saying she isn't being truthful

Even if I was sure she was, it doesn't change the relevant factors... which we've gone over. The school is acting correctly, due process and all that... THEY cannot "convict" the football player. The courts didn't and the case HAS been adjudicated. He is a misdemeanant, not a rapist, and based on that - he continues to play football.

The football field is not the venue for her to play out her feelings about the matter and her position as a cheerleader is as a cheerleader. If she doesn't want to cheer for the team, and I can see why she should not, then the "moral" thing to do is give up her position, not expect the school to accomodate her ON FIELD, IN UNIFORM statement.

I have no opinion about her, whether she is fantastic or not. I have an opinion about her case, which is frivolous. Let's assume she was raped, and she didn't get justice in the court system (assume for the sake of argument. I have no conviction that it did or didn't happen). That still doesn't change the fact that the school did the right thing in this case.

Frankly, the school would be doing a DISservice if they allowed her to continue to do what she was doing. I am glad the lawsuit was found frivolous. I don't think tax dollars and (I assume) school district dollars should be paid out to people who file frivolous lawsuits against the school.

[NashVegas]

24. The School Is Not Acting *Remotely* Correctly

The school is and was acting in a way to further victimize one of its students, who was assaulted by one of its athletes.

You do not order a teenaged girl to scream the cheer this girl was ordered to scream, as encouragement for her attacker. That's grounds for emotional distress right there.

Her case is not at all frivolous. It's highlighting a very fucked up element of her school's culture, and its gross mismanagement.

[toastbutter]

27. No, they ARE acting correctly

They would be doing a disservice to the team, the cheerleaders, etc. to let this girl do this. Their position should be this - your position as a cheerleader is to cheer for the team. Each and every member. If you are not comfortable with that, then you cannot be a cheerleader. While acting as a cheerleader, you are representing the school.

This is really an 'easy' case. That is why it was dismissed as frivolous, which is a much higher standard to meet than merely not winning. Iow, she didn't just not prove her case, but her case was frivolous. What I am seeing is a sympathy with her such that facts of the case are ignored because the plaintiff is sympathetic. That's now how legal concepts work. It's about equal justice and equal rules, even if one party is sympathetic, and the other party is scum.

[NashVegas]

33. Not Remotely

The exception breaks the rule in this case.

Four weeks ago, I would have agreed with you that the school was, technically, within its rights. I'm sure I posted as much. But at that time, published accounts didn't give the text of the cheer, and this makes it a whole new game, IMO.

Considering the nature of the assault accusations was gang rape, when you combine that with "come on Rakheem, put it in," the school becomes complicit in harassment to order her to scream a cheer like that. That's just frigging common sense.

[Name removed]

26. Deleted message

Message removed by moderator. Click here to review the message board rules.

[toastbutter]

29. My posts are not defending a rapist, any more than a post against illegal wiretaps

against terrorist suspects "defends terrorists"

That's a fallacious argument. The ends do not justify the means. I am not defending a rapist, assuming (for the sake of argument) that he is a rapist. If I argue that an accused murderer deserves a lawyer (under the law) , am I "defending a murderer?"

Reminds me of the argument that those supporting illegal wiretaps use... if you aren't doing anything wrong, you have nothing to fear.

[U4ikLefty]

31. Fired for not CHEERING your RAPIST = Against Illegal Wiretaps???

really???...are you really making that comparison Skippy?

Talk about a bad analogy!!!

[toastbutter]

32. When one's position is AS A CHEERLEADER

then yes, one can be fired for not cheering your ALLEGED rapist (that was not adjudicated as a rapist, but was found guilty only of assault). But that wasn't the analogy I drew. The analogy was to the idea that I am "defending a rapist, because I am defending rule of law in regards to an ALLEGED rapist.

[U4ikLefty]

34. OKAY Badass...should she have to cheer the punk who ASSAULTED HER???

I love the way you say "only of assault" as if he was jaywalking.

[toastbutter]

37. Yes

As a cheerleader, she should have to cheer for every member of the team. That's what they are supposed to do. They can't pick and choose which members to cheer for. She has a very good reason NOT to cheer for him. However, she has no legal redress if she is relieved from her position for making that choice.

[U4ikLefty]

50. DISGUSTING!!!! So in your mind it didn't matter if he raped her or not?

Your words: "That's what they're supposed to do". :puke:

[toastbutter]

51. Of course it matters

but considering he has not been convicted of it, and was only convicted of assault, as far as THE LAW IS CONCERNED, he didn't rape her. And given that, the school retained him as a football player. Like I said, if I was her, I wouldn't cheer for him either. But I would have legal redress if I was let go from the cheerleading team for making that decision. The school cannot allow cheerleaders to selectively choose who they will and won't cheer for.

[U4ikLefty]

55. not to you

Since he assaulted her, he was expelled.

I was just seeing how far a newbie would argue that a cheerleader should cheer her rapist...congrats!!!

Now back to your mom's basement.

[toastbutter]

56. well no

And I never said a cheerleader should cheer her rapist. Assuming he raped her, which the grand jury wouldn't true bill him, and thus he wasn't tried for, the honorable thing to do would be not to cheer for him. It's just that then the school has no choice but to can her from the cheerleading team. You can refer to him as "her rapist" all you want, but the school has to follow THE LAW, and according to THE LAW, he was not "her rapist" since the state failed to convict him of being HER RAPIST (note that according to the testimony, some believe there was a racial bias behind the grand jury not true billing him. Whether or not that was dispositive I don't know, but it was supposedly an element the prosecution feared). Because he was not, according to the law, HER RAPIST, he apparently has a right to remain on the team, since he is only a misdemeanant.

Regardless, the school acted properly. And the lawsuit was frivolous (12 (b)(6) motion) and thus, the taxpayers shouldn't be saddled with the legal bills. And they weren't

[U4ikLefty]

57. So you think she should have to cheer her rapist (or assaulter)...thanks.

Your concerns for the taxpayers are noted for posterity.

Your point was clear, I will be waiting for your defense of lynching next.

[toastbutter]

58. No. You can misstate my position all you want, but repeating a lie

doesn't make it true. I am saying that if I was her, I wouldn't cheer him. It's that I would then have no redress if I was canned from the cheerleading team, as she was. The cheerleading team actually had a cheerleading contract fwiw. That's referenced in the appeal.

[tekisui]

59. Good riddance to bad rubbish.

Thanks mods. There is no room for rapist apologists here.

[boppers]

28. This wasn't on the football field.

"At a February 2009 basketball game in Huntsville, Texas, H.S. joined in leading cheers for the Silsbee High team, which included Bolton. But when Bolton went to the foul line to shoot free throws, H.S. stepped back, folded her arms and sat next to the squad's faculty leader."

This was on a basketball court.

[toastbutter]

30. Good point

but as I said again, it's still an 'official capacity" issue. She was IN UNIFORM at a SCHOOL FUNCTION and thus was acting as a cheerleader. Thus, the issues about free speech for students is not the relevant framework. The framework is one of a cheerleader acting in her official capacity.

But good point.

[rug]

7. "Two, four, six, eight, ten, come on, Rakheem, put it in."

The school wanted her to shout that?

[Lefta Dissenter]

9. :-( (n/t)

[NashVegas]

23. Unbelievable

The entire school board should get its ass booted for letting this go to court.

[Name removed]

14. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Jamastiene]

20. I hope she wins.

They should never have expected her to do that. That was crossing the line after what she went through.

[boppers]

25. She wants the court to find she had a right.... to not cheer... as a cheerleader?

Was she under some sort of contractual obligation to become a cheerleader? To remain a cheerleader?

[JI7]

53. it wasn't to not cheer at all, just against the one who assaulted her

[boppers]

54. So, she could have quit cheering at any time?

She was under no obligation to cheer?

[TorchTheWitch]

36. why is she still attending the same school with her rapist?

This is what I don't get to begin with. No way would I make my daughter continue at the same school her rapist is attending. That's horribly cruel.

[lolly]

38. Why is he still attending the same school as her?

Why should she have to uproot her life, leave her friends, leave the cheer squad because HE assaulted her?

Kids get kicked out of school for a year for smoking marijuana--but pleading guilty to sexual assault means you get to stick around, and if the person you assaulted doesn't want to call out your name in a cheer (she wasn't refusing to cheer at all, for those of you throwing out that strawman) then SHE has to leave?

If a woman (or man, for that matter) was sexually harrassed at work, then declined to sign the office Christmas card for the harrassing boss, would that be grounds to then fire that employee?

[TorchTheWitch]

39. clearly the school isn't doing anything

Obviously they should have. But since they didn't, why is she still going to the same school? Why is she made to suffer having to see this piece of shit every day just to make a point??? Her sense of safety and emotional well-being is the TOP priority here.

[NashVegas]

46. You Don't Change A Wrong By Running Away From It

[TorchTheWitch]

47. one more time...

Her sense of safety and emotional wellbeing are the TOP priority. PERIOD.

Removing her from such a cruel situation that would grossly effect her sense of safety and emotional wellbeing being called "running away" is SICK. And it is SICK to make this girl continue to see her rapist or worry about running into him every day when she goes to school.

She should have been taken out of that situation and enrolled in another school for HER sake REGARDLESS of who was in the wrong. And there's absolutely nothing stopping anyone from trying to right that wrong while she's in another school and away from her rapist.

[lolly]

52. They're not making her stay

She wanted to,apparently. And she wanted to stay on the cheer squad.

She earned her spot, she worked hard to get on the squad. She shouldn't have to leave her school and give up her spot on the squad because she refused to participate in one cheer--for a very good reason.

[keroro gunsou]

40. simple enough answer:

he's a star athlete. why else would they bend over backwards to let him stay in school after what happened.

[boppers]

41. High School Cheerleading as a job?

Interesting.

How does it pay?

What are the workforce laws on folks who dress scantily, chant vapidly, and get NO PAY for such a difficult task?

Oh. Wait. It's not a job. It's a volunteer activity.

If you volunteer to work for the BSA, KKK, NBA, NFL, or any other group with a history of hate/violence, don't be surprised at the results.

[muriel_volestrangler]

45. By the time he pleaded guilty, he had already left the school

Order of events:

Oct 08: assault/rape; Bolton arrested, but not charged, allowed to return to school
Jan 09: a grand jury does not charge Bolton
Feb 09: basketball game, girl refuses to cheer for Bolton, is kicked off cheerleading team
Nov 09: another grand jury charges Bolton and another (by then, former) student with sexual assault
Sept 10: Bolton pleads guilty to a misdemeanor assault charge and receives a suspended sentence

When charged in Nov 09, the article says he was a senior that year, and had been playing football up to that point. It is not clear if they then suspended him from the team and/or the basketball team; I would hope they did.

The question is whether the high school should have said, in Jan 09, "the standard of proof that a court case needs is higher than we need; although a grand jury has declined to file any charges, we're kicking him off the sports teams because of the suspicion, rather than any legal process". I can see that he might have claimed that would be unfair when legally, he appeared in the clear at that time.

[tammywammy]

49. He was expelled when he was indicted for assault

http://abcnews.go.com/US/rape-high-school-cheerleader-vows-fight-school-district/story?id=11972052&page=1

[tammywammy]

48. He was in school because he wasn't charged with anything

Once he was charged he was expelled.