SCOTUS: Cheerleader Must Pay Damages for Refusing to Cheer Rapist

Scene from The Handmaid's Tale

I’m sure you all remember this story. A 16-year-old cheerleader (known in court papers as HS) at Silsbee High, in Silsbee, Texas, was raped by local basketball star Rakheem Bolton, football player Christian Rountree, and another unnamed juvenile male at a post-game party in 2008. The young men:

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.

Sounds pretty cut and dried, doesn’t it? Bolton even admitted guilt took a plea bargain:

In September 2010, Bolton pled guilty to a lesser charge of Class A Assault and was sentenced to one year in prison, a sentence that was suspended by the judge in lieu of two years probation, a $2,500 fine, community service and an anger management course.

The school reacted by telling HS to “keep a low profile,” e.g., don’t eat in the cafeteria or get involved in plans for homecoming. Meanwhile Bolton was allowed to go on playing for the basketball team. From The Independent UK:

Four months later, in January 2009, HS travelled to one of Silsbee High School’s basketball games in Huntsville. She joined in with the business of leading cheers throughout the match. But when Bolton was about to take a free throw, the girl decided to stand silently with her arms folded.

“I didn’t want to have to say his name and I didn’t want to cheer for him,” she later told reporters. “I just didn’t want to encourage anything he was doing.”

Richard Bain, the school superintendent in the sport-obsessed small town, saw things differently. He told HS to leave the gymnasium. Outside, he told her she was required to cheer for Bolton. When the girl said she was unwilling to endorse a man who had sexually assaulted her, she was expelled from the cheerleading squad.

HS’s parents sued school officials and the school district, but the upshot was a federal court said she had to cheer for her rapist no matter what.

A federal district court dismissed the family’s claims against the school district and school officials, as well as additional claims filed against the local prosecutor. In a unanimous ruling last September, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, affirmed the dismissal.

“In her capacity as a cheerleader, H.S. served as a mouthpiece through which [the school district] could disseminate speech—namely, support for its athletic teams,” the 5th Circuit panel said. “Insofar as the First Amendment does not require schools to promote particular student speech, [the district] had no duty to promote H.S.’s message by allowing her to cheer or not cheer, as she saw fit. Moreover, this act constituted substantial interference with the work of the school because, as a cheerleader, H.S. was at the basketball game for the purpose of cheering, a position she undertook voluntarily.”

To add insult to injury, the court called the case a “frivolous lawsuit” and ordered HS to pay $45,000 to cover court costs. You can read the decision here (PDF).

So HS and her family took the case to the court of last resort–The U.S. Supreme Court–which on Monday refused to hear the case without even making any comment!

And the final insult: A couple of months ago, the case against the football player who assaulted HS was dropped “in the interests of justice,” and the case against the unnamed juvenile rapist was dropped because “the evidence was insufficient for prosecution.”

I don’t even know where to begin in addressing this outrageous miscarriage of justice. Apparently if you’re a female high school cheerleader, you have absolutely zero free speech rights. HS didn’t even make any overt protest–she simply chose to remain silent when her rapist name was chanted by the other cheerleaders and the crowd.

It took a lot of courage for HS to stay on the cheerleading squad and refuse to disappear silently into the ether so that her rapists could continue their careers in high school athletics–and most likely go on to sexually assault other women. Not only is this horrifying outcome for all rape victims, but also it’s a dramatic setback for the rights of students to fight back against the often stupid and insensitive decisions of school administrators and school districts.

The fact that SCOTUS has refused to review this case is disgusting, and at least on of the justices should have objected. Where were Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagen? The future for women in the U.S. is looking more and more like The Handmaid’s Tale with every passing day.