A tale of two cheerleading cases: Why student free-speech legislation may, belatedly, have a prayer

Advocates for the freedom of religious speech are celebrating a federal district judge’s decision giving a group of East Texas high school cheerleaders the right to continue displaying Bible verses on the football field.

They shouldn’t. Judge Steve Thomas’ decision is dead on arrival as soon as it is appealed to the federal Fifth Circuit – because those celebrating last week’s ruling stayed silent when another Texas cheerleader’s rights were cruelly disregarded.

In October 2008, a Silsbee High School cheerleader, “Hillaire S.,” was sexually assaulted at a house party by a group of student athletes. One of them was a star player for the basketball team, for whom the cheerleading squad had created a personalized cheer.

At a February 2009 game, Hillaire could not bring herself to cheer for her attacker, so she quietly knelt on the sideline instead. Her school principal and superintendent pulled her aside, sent her home, and kicked her off the team.

Hillaire (referred to in court papers as “H.S.”) and her family sued the Silsbee Independent School District for violating the First Amendment in punishing her for a silent moment of expression. This was not a get-rich-quick suit; the family merely wanted a declaration that the school was in the wrong.

What they got instead was a lesson in contemporary American justice: That the school is always right and the student is always wrong.

In September 2010, the Fifth Circuit U.S. Court of Appeals sided with the school district and threw out Hillaire’s case, finding that the school had essentially total discretion to control student behavior regardless of the Constitution:

“In her capacity as cheerleader, H.S. served as a mouthpiece through which [the school] could disseminate speech – namely, support for its athletic teams,” said the ruling by Judges Emilio Garza, Edith Brown Clement and Priscilla Owen. “Insofar as the First Amendment does not require schools to promote particular student speech, [the school] had no duty to promote H.S.’s message by allowing her to cheer or not cheer, as she saw fit.”

You read that right. In the eyes of the courts, Texas schoolchildren are not human beings – they are simply “mouthpieces” for the government.

To complete this judicial mugging, Hillaire was told that her case was “frivolous,” and her family ordered to pay a substantial portion of the school district’s $35,000 legal bill – for wasting the public’s time with her insignificant little rape.

If there is no constitutionally  protected right to sit down and say nothing at all during a cheer, then there certainly is not a legally protected right to affirmatively expose a stadium full of spectators to your chosen message over the objections of the school.

When Hillaire was assaulted for a second time by the judicial system, Texas turned its back. Students at Kountze High School, who want nothing more than to share their enthusiasm for God with their classmates, are about to pay the price.

Governor Rick Perry and Attorney General Greg Abbott, outspoken in their support of Kountze High’s devout cheerleaders, stayed on the sidelines and said nothing when Hillaire needed them. But they can remedy that mistake now, and they should.

Although Texas has a state law, the Schoolchildren’s Religious Liberties Act, that gives somewhat broader protection than the federal First Amendment, that law is incomplete and it appears to apply only to “speeches,” so a cheerleading banner may or may not be covered.

Texas should remove all uncertainty by enacting a comprehensive school free-expression law counteracting the U.S. Supreme Court’s mistaken 1988 ruling, Hazelwood, which undermined Hillaire’s case and threatens to do the same to the Kountze case. “Anti-Hazelwood” reforms are on the books in seven states, and over their combined 146 years of history, they’ve proven overwhelmingly successful in avoiding ugly and expensive legal disputes like the one headed for a disappointing end in Kountze.

Every student – not just outspoken Christian ones – has the right to be kept safe from government brainwashing, and no child should ever be regarded as a “mouthpiece.” It’s too late for Hillaire to have justice, but – if the governor and attorney general act bravely – she can still enjoy vindication.

NOTE: Attorney Larry Watts, lead counsel for “Hilaire S.” in the Doe v. Silsbee School District case, will be a featured speaker Nov. 8 at the symposium, “One Generation Under Hazelwood,” presented by Education Week and the Student Press Law Center at the University of North Carolina-Chapel Hill. Register today and learn more about this disturbing application of the Supreme Court’s Hazelwood School District v. Kulhmeier and others like it.