By Frank D. LoMonte, Executive Director of the Student Press Law Center, a nonprofit advocacy and legal-services organization based in Arlington, Va.
If hard facts make bad law, then how can easy facts make worse law?
The facts are these. A Texas high-school cheerleader (referred to in court papers as "H.S.") reports to police that she was raped at an off-campus party. One of the accused assailants, Rakheem Bolton, plays for the basketball team. Despite Bolton's presence, the cheerleader dutifully reports to the sidelines and performs her routines - until the squad gets to a routine that incorporates the accused player's name. Rather than cheer for Bolton by name, the cheerleader sits it out. Audience members notice the silent protest and heckle her.
School officials order H.S. to perform the routine, and when she says she cannot, she is kicked off the team for the rest of the school year. The student and her parents file suit, alleging the school violated H.S.'s First Amendment rights. (The criminal case against Bolton, unresolved at the time of the First Amendment case, ended with a guilty plea to a misdemeanor charge of simple assault.)
Easy facts, right? "Right" and "wrong" don't get much clearer.
That's what three judges on the Fifth Circuit U.S. Court of Appeals thought, too - when they ruled, 3-0, in the school's favor, in a perfunctory unsigned opinion, Doe v. Silsbee, jarring for its tone-deafness.
Here is how the panel - Judges Emilio Garza, Edith Brown Clement and Priscilla Owen - summarily dispatched the student's First Amendment claim in their Sept. 16 opinion:
In her capacity as cheerleader, H.S. served as a mouthpiece through which [the school district] could disseminate speech - namely, support for its athletic teams. 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.
Silsbee is like a Russian nesting doll of wrongness - so wrong that it compels the full Fifth Circuit to grant the en banc reconsideration that H.S.'s attorneys are seeking and vacate it. Here's why.
As the panel recognized, the Supreme Court's Tinker standard prevents schools from punishing students for the content of their expression unless the speech "would materially and substantially disrupt the work and discipline of the school."
"Substantial disruption" typically means interference with the school's ability to conduct business. Merely provoking dissent, as the Tinker plaintiffs' anti-war protest did, is never enough.
Other circuits understand this well. Thus, in Holloman v. Harland, an Eleventh Circuit panel held that a student's act of raising his fist in silent protest during the recitation of the Pledge of Allegiance was so obviously protected expression that disciplining the student violated clearly established law.
Without elaboration, the Silsbee court concluded that declining to recite the routine constituted a substantial disruption "because, as a cheerleader, H.S. was at the basketball game for the purpose of cheering, a position she undertook voluntarily."
But this dangerously confuses the law of student speech with the law of employee speech. While it is true that the First Amendment typically cannot excuse a public employee's deviation from her employer's instructions, no court has ever said that a student stands on the same footing as an employee. To the contrary, courts have been abundantly clear that students - who are required by law to attend without compensation - are not "agents" of their schools. An agent might be subject to discipline for "insubordination" for refusing even a constitutionally impermissible order, but a student cannot be.
Presumably, H.S. could have worn Mary Beth Tinker's anti-war armband while cheering, even if her coach ordered her to take it off. To have any right of free expression, students must necessarily have the right to disobey unlawful orders to refrain from expression (or, in this case, to engage in compelled expression). Without this right, Tinker becomes meaningless.
That the cheerleader defies the coach's order to cheer establishes nothing without inquiring whether the order was lawful to give. The Supreme Court told us in West Virginia Board of Education v. Barnette that students may refrain from compelled expression by staying seated during the Pledge of Allegiance. Even in Texas, it is difficult to believe that high-school sports are owed greater fealty.
Had H.S. gone through with the cheer, it is not difficult to imagine a video of her performance showing up as Defense Exhibit 1 at the trial of her assailants. A talented defense attorney could devastate a victim's credibility with one sentence: "Nobody who genuinely is raped stands up and publicly cheers for her rapist." The real question - the question the Fifth Circuit ducked - is whether the school could force H.S. under threat of disciplinary action to participate in this cheer: "Rakheem is not guilty." Basic human decency compels only one answer.
President Obama was ridiculed for including "compassion" on his list of essential qualities for the federal bench. Silsbee illustrates the result when three judges - each of whom has been short-listed for the Supreme Court - rule with the "compassion" switch off.
The opinion's bloodless recitation would be better-suited to an ERISA dispute. The student was "contractually obligated" to cheer, wrote the judges - as if the highest concern in this situation should be the integrity of cheering contracts.
If the court could not bring itself to rule in the student's favor, then it owed the student an opinion acknowledging that this was no routine business transaction. There are compassionate ways to write an opinion concluding that the Constitution at times offers no redress for acts of appalling stupidity. For example:
This sorry situation was brought on by a disgraceful lapse in judgment by school administrators. There may be recourses for H.S. and her family through the state licensure system, and there certainly is the recourse of the ballot box to hold accountable any school board member who ratifies such ineptitude. But we are constrained to hold, for the reasons that follow, that the Constitution offers no remedy...
It is excusable to get the law wrong, and the panel most certainly did that. But it is never excusable to be dismissive of a twice-victimized young person, whose case deserved better than the back-of-the-hand treatment it received.