Texas cheerleading is something of a religion unto itself. It also has a peculiar history of scandal and other legal oddities (I’m looking at you, Wanda Holloway).  The latest news, involving a cheerleader known only as H.S. (or M.S., depending on where you look), should not be lumped into the strange history of Texas cheerleading, though, as it involves some thorny questions that still have my head spinning.

In short, in 2008 a cheerleader was sexually assaulted by a basketball player, who plead guilty to misdemeanor assault but never went to jail.  A few months later, she refused to cheer for him during a free throw, and was expelled from the cheerleading squad.  Her family then sued the school, alleging violation of her First Amendment rights.  The courts disagreed, and the Supreme Court has declined to hear the appeal.  She is now stuck with a $45,000 tab for the school’s legal fees.

I can’t possibly go into an in-depth analysis of this with the little information that I have.  I was initially content to tweet a few links about it yesterday, but a response that I received to a tweet got me thinking about the situation:

Truth be told, at the time I wasn’t sure why I retweeted the story–it just seemed important. Upon reflection, I think it is all of the reasons stated in the reply.  It is (I certainly hope) impossible not to feel sympathy for H.S. in this case.  The sympathy is certainly pouring out all over the internet, as well as outrage.  Not knowing all of the facts makes it especially frustrating–how did it get to a point that she was apparently forced to decide at court side whether or not to cheer for this guy?  There appears to be no question that he is guilty.  On the one hand, why would she want to put herself in the position of having to maybe cheer for him, but on the other, much bigger hand, why would the burden be on her in the first place??? I don’t know why he isn’t in jail, and I won’t speculate.  I also don’t know why, a few months after pleading guilty to assault, he was still playing basketball.  That may be a discussion for another day.

Bottom line, it seems wrong that this situation even happened.  How did these two people end up back in these same roles after what happened between them?  It is very easy to feel the greatest sympathy for her, for making a seemingly simple and rational decision and being punished for it.

Then we come to the lawsuit itself, and my sympathy becomes, uh, conflicted.  I just don’t see any sort of First Amendment claim here.  The courts concluded, to put it briefly, that in her role as cheerleader she was a spokesperson for the school, and her job was to perform or say what the school wanted.  That makes sense (in the absence of the emotion of this particular case).  At least in theory she had other options besides a federal constitutional lawsuit.

That brings us to the outcome–the case was dismissed, and she must pay attorney’s fees as a result of filing a frivolous claim.  I cannot honestly say that the claim was not frivolous, but I cannot say that the court’s order is just.  This illustrates a point that is often lost on many people, lawyers included: just because an action is legal (or not illegal) does not mean it is proper, and just because a form of relief is available, does not mean it is just.

Perhaps the cheerleader was wrong, in the context of her job as cheerleader, to refuse to cheer.  Perhaps the school was justified, in the context of a cheerleader who refused to follow procedures, to kick her off the team.  It seems so tidy on paper, but what on earth were they thinking?

The lawsuit, from a legal perspective, was also wrong (in that it made a claim not supported by the law).  A common remedy for someone subjected to a frivolous claim is to have their opponent pick up the legal bill.  But again, is that really justice in this case?  I can’t say the court was wrong–they applied the law, as far as I can tell.  I also can’t say the court was right.  Everyone was right, and everyone was wrong in this case.  And I couldn’t say that in 140 characters.

UPDATED: Here.

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