The case might seem unremarkable on the surface. It centers on a cheerleader at Silsbee High School — the only high school in a Southeast Texas community numbering some 7,000 people. The setting is a February 2009 basketball playoff game. As Rakheem Bolton goes to the foul line, the cheerleaders break into a routine, but onlooking school officials notice the squad is one short. One team member, identified as “H.S.,” refuses to participate. She’s given a choice: Cheer for everyone or cheer at home. The school would later remove her from the team, prompting her parents to file a federal lawsuit claiming the move violated her First Amendment rights. It’s a case they would lose in front of two different courts.
But it’s the story behind that story that has many free speech advocates up in arms. “H.S.” wasn’t being told to cheer for just any player — she was being told to cheer for the player she accused of raping her four months prior.
As SPLC Attorney Advocate Adam Goldstein wrote on the Huffington Post:
The law is intended to serve as the lowest level of behavior we can accept before society ceases to function. I believe that forcing a girl to cheer for someone who may have sexually assaulted her is beneath that level. I think it represents a failure in society for it to happen at all, and if the law genuinely required that, the law would need to be changed immediately, because we would be savage monsters to have such laws.
In September, the 5th U.S. Circuit Court of Appeals upheld the school’s action, finding the cheerleader’s silent protest to be substantially disruptive conduct unprotected by the First Amendment. In a post for the American Constitution Society, SPLC Executive Director Frank LoMonte argues the court mangles existing case law that protects silent student protests. He calls the unanimous decision a “Russian nesting doll of wrongness” that should be overturned by the full 5th Circuit:
The opinion’s bloodless recitation would be better-suited to an [employment] 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.
Bolton was indicted for sexual assault and would later plead guilty to Class A Assault. He was given a suspended sentence in September along with two years probation, a fine, community service and anger management training, according to KFDM-TV. Bolton said the incident was a misunderstanding.