By Harvey Silverglate
The first remarkable aspect of the case intriguingly captioned John Doe, Father of Minor Daughter H.S. v. Silsbee Independent School District, are the facts: Administrators at a public high school in Texas threw a female student off of the cheerleading squad because she refused to cheer for one particular member of the basketball team---a fellow student who, she claimed, had sexually assaulted her at a party. Cheer when the rest cheered, she was told, or else be kicked off the cheerleading squad for the rest of the year. She refused, and was dismissed from the squad, court records show.
But reading closely the legal briefs and court opinions produces a second, equally remarkable fact: Neither the lawyer for the dismissed cheerleader, nor the three judges of the federal Fifth Circuit Court of Appeals (sitting in New Orleans), bothered to cite, much less follow, arguably the most famous and fundamental Supreme Court opinion ever written interpreting the scope of the First Amendment in protecting public school students: West Virginia Board of Education v. Barnette. It is an opinion that Professor Alan Charles Kors and I discussed in considerable detail in our 1998 book, The Shadow University: The Betrayal of Liberty on America's Campuses. I'll return to this momentous opinion below.
How can it be that everyone (including three appeals court judges on a level just one step below the Supreme Court) appears to have missed the one high court opinion that would quickly and neatly resolve the case in the exiled cheerleader's favor? The answer, it seems to me, lies in the fact that, when it comes to litigation concerning the civil liberties of public school students, nearly everyone reflexively thinks in terms of the politically correct concepts---and shibboleths---of the day. Because our thinking about issues of free speech and independent thought in the academic world are so off-kilter, it becomes more difficult to see tyranny over public school students as precisely what it is---tyranny---rather than simply as par-for-the-course administrative control over the lives, words, and even thoughts and attitudes of students.
A Contractual Obligation to Cheer?
When cheerleader "H.S." (her initials, used in the litigation in order to protect her privacy) claimed that a member of the basketball team attempted to rape her, the district attorney brought the case in front of a grand jury to seek an indictment. The grand jury refused to indict the student for a felony, although he later pleaded guilty to a misdemeanor charge of assault, receiving a suspended sentence.
As a result of this encounter, H.S. refused to cheer when the accused player was taking his bows. She cheered for the rest of the team, except for her alleged attacker. When he stepped to the foul line, and the cheerleading squad chanted his name, she stepped back, folded her arms and sat down, The San Francisco Monitor reported. "I didn't want to have to say his name, and I didn't want to cheer for him," she told the newspaper, with considerable restraint and even understatement, it would appear, since he did, after all, admit to misdemeanor assault.
When H.S. was tossed off the cheerleading squad for this insubordination, she and her family filed a civil rights suit against school authorities. The claims were varied and the lingo quite familiar in the current litigious environment surrounding public schools: The school authorities discriminated against her because of her gender. Those who punished her "stigmatized" her. Her "bodily integrity" was not being protected. She was "defamed." None of this flew with the federal courts that heard the case.
However, the cheerleader also lost on her major constitutional claim---that her free speech right to stand mute rather than to cheer constituted "symbolic expression" that could not be censored nor infringed by school administrators. There was a debate among the parties and the judges as to whether her refusal to cheer constituted the kind of "symbolic speech" protected by the First Amendment. The Court of Appeals dashed this argument as follows: "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." And because the student was part of the cheerleading squad, she "was at the basketball game for the purpose of cheering" and she therefore did not have a right "to cheer or not cheer, as she saw fit." She had a contractual obligation to cheer, to smile, to lead in the idolization of the school's sports players and heroes.
The court analyzed the First Amendment cases cited by the cheerleader's legal counsel---cases that grant students a First Amendment right to speak their minds in school. High school student speech is limited, however, by the need and power of administrators to curtail disruption, or to censor expression when it seemingly invades the school's authority to express its own message. (This administrative power to censor student speech in order to maintain order or to stay on message is quite strong on the elementary and high school levels; it becomes much weaker when dealing with college students, where academic freedom protects student expression to an extraordinarily high degree. "Free speech" and "academic freedom" have very different definitions in high school versus college.) Since the Texas high school administrators had a right to promote school spirit and the basketball team - the administration's message - the girl lost. End of case. End of story.
Freedom From Coerced Speech
But, not so fast. A review of the appellate court opinion (PDF), as well as of the briefs filed by H.S.' lawyer, has one glaring omission, and that is any reference whatsoever to the one Supreme Court opinion that would have put an end to the matter in the first five minutes, in the cheerleader's favor.
In the waning years of World War II, the Supreme Court rendered perhaps its most important opinion ever to vindicate not so much the right of free speech (the right that H.S.' lawyer erroneously thought would protect his client from being forced to cheer for her assailant), but the right not to be required to utter speech or to engage in any expressive activity in which an individual does not believe. In West Virginia Board of Education v. Barnette (1943), a public school student of the Jehovah's Witness faith refused to obey a state statute that required school authorities to lead, each morning, a salute to the American flag in which all students had to participate, under pain of expulsion for the recalcitrant student and criminal penalties for his or her parents. Justice Robert Jackson, writing for the high court majority, penned one of the most ringing declarations of the importance of freedom of conscience to ever emerge from the Supreme Court. He wrote about the incompatibility of a free society on the one hand, and government-required expressions of belief on the other.
It was an appropriate time for the Supreme Court to write about the centrality of protecting the sacred right of conscience from any kind of "officially disciplined uniformity" of thought and belief. Arguments that wartime raised singular problems that justified enforced uniformity of expressions of loyalty and belief constituted, for Justice Jackson, "an unflattering estimate of the appeal of our institutions to free minds." Without the toleration of eccentricity and "abnormal attitudes," wrote the court, we could not have either our treasured "intellectual individualism" or our "rich cultural diversities." The test of freedom comes when a society is called upon to protect not just the trivial, but, rather, "the right to differ as to things that touch the heart of the existing order."
Put simply, if the state lacks the power to force a student to pledge his or her loyalty to the flag even in times of war and national emergency, then surely the state also lacks the power to force a student to cheer for a basketball player (who, not so incidentally, she alleges raped her and who pleaded guilty to a misdemeanor). It has nothing to do with race, nor with gender, nor for that matter with the school administration's desire to promote that ineffable thing called "school spirit." If West Virginia could not force a student to pledge to the flag in time of war, Texas cannot force a student to cheer for her attacker at a basketball game. It's really that simple. But given the categories in which we analyze rights on school campuses today---race, gender, bodily integrity, administrative control, school spirit---it is perhaps not surprising that it did not occur to anyone that H.S. had a right so fundamental that it should have trumped all else. She had the absolute right to refuse to utter speech, verbal or symbolic, that her conscience would not permit.
This should have ended the matter. Perhaps H.S. will persuade the Supreme Court to review the case. If so, the outcome will not be hard to predict, for presumably someone will recall that Justice Jackson and his brethren nearly 70 years ago put at end to the question of whether the state may insist that its citizens believe, and mouth, words and thoughts dictated by official power but in violation of private conscience.
Harvey Silverglate, a civil liberties trial lawyer, is the co-author, with Alan Charles Kors, of The Shadow University: The Betrayal of Liberty on America's Campuses (HarperPerennial paperback, 1999) and, more recently, Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009). He is Chairman of the Board of The Foundation for Individual Rights in Education (www.thefire.org), which deals with free speech and other campus liberty cases at the college level.