Wednesday, May 04, 2011

No Cheers

The U.S. Supreme Court turned away an appeal by a high school cheerleader who was kicked off the squad after refusing to cheer for the player who raped him (the student plead guilty to a lesser charge). She claimed the school was violating her free speech rights; a lower court had turned aside this argument (and deemed it sufficiently frivolous to require her to reimburse the school for its expenses).

The thing is, on the legal merits I'm inclined to think this is the right decision. A cheerleader acts as a mouthpiece for the school -- that's her job -- and it makes sense that she can be compelled to speak the message the school wants sent (cheering for the players).

Nonetheless, if I were on the Supreme Court, I'd be inclined to write an opinion concurring in the denial of cert, saying something like:
It is well-established that a denial of certiorari entails no judgment on the merits of the case. It should also be established that such a denial entails no judgment on the merits of the underlying conduct. The constitution permits people, as well as government agencies, to be stupid, foolish, irresponsible, insensitive, or flat-out jerks. The type of moral judgment that impels one to kick out a cheerleader because she refused to cheer on a man who was convicted of assaulting her is the sort that makes one shudder to think these officials are in charge of crafting any sort of educational policy whatsoever. Unfortunately, we lack the authority to order the officials to develop basic human empathy, and ultimately those sorts of failures often lie beyond the capacity of law to remedy.

Something like that, anyway.


PG said...

I agree that she should have lost the 12(b)(6), but it still bothers me that the family is getting stuck with huge costs for a lawsuit that isn't really obviously frivolous. If you don't know much about the law, but have read about people's successfully suing to be silent and non-participatory during other school events (e.g. the Pledge of Allegiance), it's not frivolous to think you have a claim here. The lawyer perhaps should have known better, but of course s/he isn't the one paying the fees. I really think a sanction of this sort ought to be reserved for other cases -- there are a lot of class action securities and product liability cases far more deserving of the label "frivolous" and associated penalties.

sonicfrog said...

Yeah. My first reaction was "this is just nuts!". But after reading the details, I don't have much of a problem with it. It would have been better to either talk to the cheer coach and get the night off, or simply call in sick. I mean, if your going to not cheer for every rapist, racist, or criminal in sports, then you wouldn't have cheer leaders.... Hmmmm...

PS. I've mentioned that I'm a musician (I use that word in the loosest of terms), and one of my favorite all-time band names that I've never had a chance to use is Cheerleader Deathsquad!

ver word: misonion