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Required to cheer for your assailant? Whose rights count?

May 10, 2011 – 10:34 AM

By Susan McGee Bailey

The U.S. Supreme Court last week remained silent in the case of a Texas cheerleader, but the message was alarmingly loud: It may be 2011, but high school girls don’t have the same rights as high school guys.

The Court declined to hear an appeal from a Texas cheerleader and her family who sued the Silsbee Independent School District for violating her rights to equal protection and free speech when she remained silent during a cheer for a basketball player whom she had accused of sexually assaulting her the previous year. Cheer him or go home, she was told.  She went home.

A federal district court dismissed the case and a three judge panel of the U.S. Court of Appeals for the 5th Circuit affirmed the dismissal. Amazingly, the reasoning seems to be that the school’s rights overrule the individual’s right to free speech.

In supporting the ruling of a federal district court, the 5th Circuit panel reasoned that:

“In her capacity as a cheerleader, [the student] served as a mouthpiece through which [the school] 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 [her] 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, [she] was at the basketball game for the purpose of cheering, a position she undertook voluntarily.”

Remaining silent during a single cheer for one individual player is hardly non-support for a school’s athletic teams.  Papers filed with the court by the school district suggest that what really prompted the school’s extreme reaction was the disturbance the cheerleader’s silence caused in the stands. Perhaps it was support for her? Perhaps for the player? In either case, school officials surely could have handled the situation without violating individual rights.

It’s certainly true that a Texas grand jury failed to indict the basketball player or two other two alleged assailants. But failure to indict is not a statement about guilt or innocence; it is merely an opinion on available evidence.

Under Tile IX schools must address issues of sexual violence and harassment and create safe environments for all students. Vice President Biden has made addressing sexual violence in schools a major priority. Last month the Department of Education issued new guidelines for high schools and universities and their obligations under Title IX.

The Silsbee School District needs to read those guidelines carefully. Insisting that a young woman cheer loudly in support of the very young man she has publically accused of sexually assaulting her sends chilling messages to young women (and men): Do not speak out about sexual harassment and assault. Do not challenge the system. And  — echoes of another era (or so we thought) – You women, stay in your place, cheering and supporting men, no matter what you think of them!

Pretty much patriarchy at its worst, I’d say.


Susan McGee Bailey served as the Executive Director of the Wellesley Centers for Women (WCW) and a Professor of Women’s & Gender Studies and Education at Wellesley College from 1985 until January, 2011. She has conducted research on a range of gender issues in education and employment and writes and lectures on questions of women and public policy.

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