Judicial Notebook

In October 2008, “H.S.,” a cheerleader at Silsbee (Texas) High School, reported to police that she was sexually assaulted by three young men — two of them classmates — at a party. The accused students were banned from school, and H.S. saw a therapist who encouraged her to resume her routine to help deal with the trauma. H.S. decided to remain on the cheerleading squad. In January 2009, however, a grand jury decided against indicting the students, and in the next month at least one of them returned to school and rejoined the basketball team.

During a Feb. 27, 2009, game, H.S. performed most cheers with the rest of the squad, but when the others cheered for her alleged assailant during his first-half foul shots, she stood silently. At halftime, school officials confronted H.S. and told her to cheer with the others or go home. H.S. chose to leave, and she was expelled from the cheerleading squad for the rest of the year. In November 2009, a second grand jury did indict H.S.’s two classmates on sexual assault charges, and on Sept. 14, 2010, one of them — the basketball player — pleaded guilty to a lesser assault charge.

H.S.’s parents filed a lawsuit alleging that the school violated H.S.’s First Amendment rights because her decision not to cheer was an expression of her disapproval of her assailant’s behavior. Recently, however, the Fifth Circuit Court of Appeals affirmed the dismissal of the case. Although the court recognized “that public school students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” it concluded that H.S.’s speech was not protected because it “substantially interfere[d] with the work of the school” (Doe ex rel. Doe v. Silsbee Ind. Sch. Dist., No. 09-41075, 5th Cir., Sept. 16, 2010). Noting that “H.S. was contractually required to cheer for the basketball team,” the court also found that “as [a] cheerleader, H.S. served as a mouthpiece through which [the school district] could disseminate speech — namely, support for its athletic teams,” and the school “had no duty to promote H.S.’s message by allowing her to cheer or not cheer, as she saw fit.”

H.S.’s case highlights important issues for clinicians working with young clients who have suffered assaults, harassment or bullying at school. In these cases, clinicians may be asked to help clients decide whether to resume activities that might expose them to a tormentor, engage in acts of protest against certain conduct at the school, or form or join a support or advocacy group at school.

Although the court’s decision in H.S.’s case seems to foreclose the possibility that a victimized student can engage in meaningful protests at school, clinicians (and school officials) should not interpret the case so broadly. Generally speaking, it is likely that if a high school student engages in an act of protest that does not interfere with the school’s work, does not cause a substantial disruption, could not reasonably be seen as speech promoted by the school, and does not itself rise to the level of harassment, the First Amendment would protect her act. For example, in Nuxoll ex rel. Nuxoll v. Indian Prairie School District, 523 F.3d 668 (7th Cir. 2008), the court held that a high school could not use its rule banning “derogatory comments” to prohibit a student from wearing a T-shirt stating, “Be Happy, Not Gay,” during a protest against minority sexual orientations.

The First Amendment’s application in school contexts is complex and fact-dependent: details that may seem minor can dramatically affect a court’s analysis in these cases. Fortunately, clinicians do not need to become First Amendment experts to help school-age clients find ways to take an empowering stand. As a start, clinicians can encourage students and their families to work with schools to devise suitable forms of expression. For their part, schools should be open to such cooperation. Research involving sexual assault victims indicates a link between negative social reactions — such as those displayed by the school officials toward H.S. — and avoidance coping, which in turn is associated with post-traumatic stress disorder symptoms (Sarah Ullman et al., 2007).

“Judicial Notebook” is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).