The Supreme Court has decided not to review this case, which has generated a great deal of
notoriety:
Cheerleader must compensate school that told her to clap 'rapist'. Wednesday, 4 May 2011.
A teenage girl who was dropped from her high school's cheerleading squad after refusing to chant the name of a basketball player who had sexually assaulted her must pay compensation of $45,000 after losing a legal challenge against the decision.
The United States Supreme Court on Monday declined to hear a review of the case brought by the woman... Lower courts had ruled that she was speaking for the school, rather than for herself, when serving on a cheerleading squad – meaning that she had no right to stay silent when coaches told her to applaud.
This took place in Texas, which "perhaps highlights the seriousness with which Texans take cheerleading and high school sports, which can attract crowds in the tens of thousands."
Ahh, yes, Texas takes civic pride, and likely civic dollars, pretty seriously. Why should something as frivolous as rape get in the way? It is beyond disgusting that in 2011, it still bears pointing out that in the eyes of far too many, if this young woman was pretty enough to be a cheerleader, the rape was almost certainly her fault anyway.
But this case goes beyond the provinciality of Texas jurisprudence, and the ongoing misogyny of our society. It goes to the heart of the question of the role of compassion in our legal system.
(Please see update at the end.)
It is incredibly disheartening that the Supreme Court of the United States would not hear this case.
Here's the take on the Texas Court of Appeals decision by the American Constitution Society for Law and Policy last November, before the case was appealed to SCOTUS:
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...
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.
You can read a lot more legal analysis in the ACSLP article if you wish. There is discussion of free speech, protected expression, the specific rights of students, and what constitutes substantial disruption, insubordination, and the obligation to disobey unlawful orders. But I think the important point is this (bold type added by me):
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.
An excellent commentary in BET.com adds this:
If this is justice, then I’m terrified to see what injustice looks like. I’m not a lawyer, but it seems terrifying that an innocent involvement with a school activity like cheerleading is now being deemed as something over which the school has total control—so much so that administrators get to demand girls cheer or don’t cheer. What sort of precedent is this setting? Will Black cheerleaders have to cheer on racists? Will Jews have to cheer on anti-Semites? And all because they want to be involved in the harmless American pastime that is high school cheerleading?
It is a near certainty that additional Supreme Court vacancies will need to be filled during the duration of President Obama's terms in office. This case should not be forgotten when it comes to discussion of the need for decency and the capacity for empathy and compassion in a Supreme Court Justice.
* * * * *
Update, and request for input: This diary is generating very little sympathy, and several commenters (amongst them I'm sure from context are attorneys) have expressed the opinion that the controversy surrounding this case is entirely unfounded, and that this diary is misleading. I was originally alerted to this case by today's article on AlterNet, I site which I generally greatly respect, entitled, Supreme Court Denies Justice To Texas Cheerleader Who Refused To Cheer Her Alleged Rapist.
If the consensus is that this diary is misleading and not appropriate for Daily Kos, I will take it down. On the other hand, it has generated some good discussion, from which i have also learned something. So, I'm reluctant to delete it. Your thoughts?
I'll grant that the title "SCOTUS: rape victim must pay for refusing to cheer her rapist" was misleading. I've changed it.
Thank you.