A high-school cheerleader reports being raped by a star athlete.
The athlete is allowed to plead guilty to misdemeanor assault, and returns to playing. The cheerleader refuses to cheer for him. One grand jury refuses to indict; a second charges him, and he’s allowed to plead down to a misdemeanor assault charge. Before the indictment is handed up, the cheerleader refuses to cheer for her assailant. The school district bounces her from the cheerleading squad. Her parents sue to have her reinstated.
The Firth Circuit (aka the Tea Party Court of Appeals) rules that not only was the district entitled to bounce her, but her claim to be able to refrain from cheering for her assailant was “frivolous,” and her parents have to pay the school district’s $45,000 in attorney’s fees. The Supreme Court refuses to hear the case.
Now it seems to me that, as a legal matter, the school district was within its rights: if a cheerleader doesn’t want to do what a cheerleader does – no matter how strong her personal justification – then the squad is entitled to find another cheerleader. (Imagine an observant Jewish student who had a part in the school play but couldn’t perform Friday evening. I wouldn’t call it a deprivation of religious liberty to give someone else the part.) To call this a violation of the student’s free speech rights seems a terrible stretch.
I suppose it’s even possible that the claim was “frivolous” in the legal sense, though unless the specific question of a crime victim had already been resolved it seems to me that a simple “no” would have sufficed, without the unnecessary piling-on of an attorney’s-fees award. And in the absence of a live Constitutional question it’s hard to see what purpose would have been served by arguments in front of the Supreme Court.
But it seems to me that what this shows is that resolving all questions as questions of individual legal rights is a bad way to do business. The school district was wrong to put a rapist on the basketball court, and wrong again to punish the victim by giving her a choice between giving up cheerleading and dancing in honor of the boy who had forced himself on her. Her silence every time that boy took a foul shot would have been a decent, dignified demonstration against sexual assault.
Instead, the cheerleading coach, and the school board, chose to take side with the assailant against the victim. It’s fine to criticize the Fifth Circuit for the attorney’s-fees award, but we should reserve most of our animus for the local authorities who acted within their legal rights but beyond the bounds of ordinary decency.