Cheerleading and the First Amendment

As a high school teacher, I constantly witness teenager misinterpretations of the First Amendment. Disciplining a student for screaming obscenities across a crowded lunchroom comes with the inevitable rebuttal of, “It’s free speech!” Or, my favorite, “It’s a free country.”

Photo by Flickr user DeusXFloridaMany principal’s office visits involve educating students on the myriad of speech that the First Amendment does not protect. However, the Supreme Court may decide to hear a case about a Texas teenager who invoked the Constitution’s protection of her silence.

The case of John Doe vs. the Silsbee Independent School pits a former high school cheerleader against a school district she claims treated her with extreme insensitivity and callousness following a 2008 rape.

The story

The petitioner, known only by her initials H.S., feels that the school district forced her to cheer for her attacker, classmate and basketball star Raheem Bolton.

According to an October 2010 report by ABC News, Bolton and another student athlete, Christian Rountree, raped H.S. and left her “under a pool table, half-naked and sobbing.” After the incident, and her completion of a rape kit by local police, H.S. was told that backlogs would drag her case out “for years.” Despite several eyewitness accounts, and immediate arrests of both young men, an initial grand jury declined to indict Bolton. A team stand-out, he immediately returned to his basketball squad to help lift them into the playoffs.

The ramifications of this move were underscored by Sports Illustrated columnist Selena Roberts. She wrote, with disgust, in her November “Extra Point” column that Silsbee is a town with “a population of 7,431 and a football stadium that holds 7,000.”

While her squad performed their standard individual cheer for him, H.S. stepped back. She folded her arms and did…nothing.

But on the night of the away basketball playoff game, H.S. made what she considered to be a small and impromptu gesture of self-affirmation. Though she cheered for her team all night, she was overcome when Bolton headed to the foul line for a free throw. While her squad performed their standard individual cheer for him, H.S. stepped back. She folded her arms and did…nothing.

For her actions, according to her lawyer, “(H.S.) was dragged into the hallway and berated by her coach, a principal and an assistant principal.” Then, she was kicked off the team.

A second grand jury subsequently indicted Bolton for his crime, and Silsbee High expelled him…after basketball season.

The trial

When H.S.’s parents sued the school district for violating her daughter’s First Amendment rights, the claim was rejected. According to the 5th U.S. Circuit Court of Appeals, H.S.’s actions “constituted substantial interference with the work of the school because as a cheerleader, she was at the basketball game for the purpose of cheering, a position she undertook voluntarily.”

Embroiled in this case are unfortunate truths about hypocrisy. Tones of victim reversal and preferential treatment for star athletes resonate throughout this sadly common story.

What happened to H.S. was downright pathetic. The actions of school administrators were callous, but were they violations of the First Amendment?

To assess this, one must first visit the two landmark cases for student speech-rights: 1969’s Tinker vs. Des Moines Community School District and 1988’s Hazelwood School District vs. Kuhlmeier. The Tinker decision, about middle schoolers wearing anti-Vietnam arm bands to school, established that for free speech to be limited in schools, the speech must serve to “interfere” or “disrupt” the school’s functions or “activities.”

In Hazelwood, a case dealing with a principal’s refusal to print certain student articles in a school newspaper, the relevant point is that schools can limit student speech if they are doing so with legitimate “pedagogical concerns.”

Don’t be surprised if the highest court in the land decides to take on the issue of a cheerleader’s right to stop cheering. In the meantime, ask yourself the following questions:

  1. Can NOT cheering be considered a school day disruption? Is the role of the cheerleader vital enough to school activities that NOT participating somehow impedes a school’s ability to function?
  2. Because the Tinker decision specifically speaks to “activities,” basketball games would be included. Yet, was H.S.’ actions detrimental to the activity itself?
  3. Is not speaking equally as disruptive as speaking?
  4. Can a cheerleading routine be considered a “pedagogical concern?”

Joe Costal is an English teacher at Oakcrest High School in South Jersey. He is also an adjunct professor at Richard Stockton College and Saint Joseph’s University. He is currently co-writing his first book on leadership reinvention.




  1. ShrimpBoat says

    I’m amazed that someone can endure all of that and still be punished for not wanting to support someone that raped her! Just because he is a good athlete does not mean that he is a good person and deserves to play. H.S.’s attempt to sue him should have been brought to court sooner and the school should have acted on it sooner. People are just greedy and unthoughtful about others which is what makes our world seem so bad. Nobody should have to have to go through what H.S. had to go through.

    Nice article Mr. Costal :)

  2. ryanlouiscarroll says

    It seems like she was being punished for the “message” not the “disturbance,” and in Morse v. Fredrick the court found that this was certainly unconstitutional. On grounds that this was a disturbance, I cannot fathom the highest court, fusty as they may be, seeing this as in any way a disturbance on pedagogical grounds.

  3. Garret Thomas says

    Great article, so much detail and the hard work and research you put into this really shows.

  4. Cole Smith says

    What I feel is going on here is another case of sports overpowering everything, which I don’t understand. This is just high school basketball. How is basketball taken more seriously than rape? The students have no sponsors. There’s no career at the moment to ruin if he gets charged. So that can’t be the important thing. Is it just sports? I find myself bewildered by the fact that high school basketball could be so monumentally important. But the only question I have is if the school officials who berated her were aware of the rape. If they weren’t, then the situation might be more understandable (but barely). But if they were, then the school should really be ashamed of the people it hired. If the school was a person, it should be turning red and trying to hide it’s face from the public. Because that really is unacceptable.

  5. Ella Coleman says

    Sadly, here is another case in which a good athlete has done something wrong, but since he’s the star of a team the punishment has been reduced on his behalf. This high school seems to be missing the bigger picture, or maybe they have realized it, but the issue isn’t important as winning the basketball playoffs.The fact that this young man was able to get off on such minimum punishment really sheds light on America’s educational system. H.S’s actions are completely justifiable, however the case may not be strong enough to reach the Supreme Court. Hopefully it will and possibly change/set the precedents of other cases that deal with First Amendment rights in school systems. As of now, the administration of this school should be reprimanded for their actions.

  6. Connie Capone says

    i think it’s DISGUSTING that the High School made a move in reprimanding Bolton after his season was done. It truly shows the school’s lack of concern, humanity, etc… I guess even rape can be put on hold if it jeopardizes a school’s precious athletic team. She should have never been kicked off for refusing to cheer for her attacker- it’s tremendous that she continued to be active in the first place after probably suffering from emotional trauma. I hope this case does reach the supreme court and I’m excited to see what will unfold.

  7. Theodore Price says

    In the end Bolton will be headed for prison without a doubt. The real matter at the heart of this case is discerning if H.S.’s First Amendemnet rights were breeched in some way by not participating. I would have to say “yes” and “no”, there is a fine line on what is protected under the First Amendment. While the Tinker case would support H.S.’s cause, that her refusal to cheer did not cause detriment to school activities, she is there voluntarily as a cheerleader, and can be kicked off if the coach feels that way. What can you do? Morally was that the right decision? No. How can you expect a person to magnaminously cheer “Go, Go, Go” to a criminal that raped said person? As for the school not acting quickly or harshly on Bolten’s actions, what is there to say? This has been occurring for decades, and the only way to impede this problem is to make a huge scene out of it. Hopefully this case can bring the issue forward so that schools make responsible decisions when dealing with athletes; stars or not.

  8. George Schieder says

    Let’s take emotion out of it, because from reading all the above comments, that is what all the arguments are based on.

    Not cheering for a cheerleading squad is a disruption! You can’t go out for football and not feel like tackling, and there’s no way you can join crew and decide “I just want to sit in the boat”. She WAS a disruption. Was the school wrong for looking down upon her, yes, but at the end of the day, she was there to CHEER. The District court stated, “she was at the basketball game for the purpose of cheering, a position she undertook voluntarily.” She obviously knew her attacker would be playing, and she had plenty of time to decide to either quit or not go ahead of time. In simplest form, she didn’t HAVE to cheer.

    So is what the school did illegal? Well, according to Tinker v. Des Moines, she would have needed to be a “interference” or a “disruption” to school activities. Let’s be honest, she WAS a disruption. According to Hazelwood School District v. Kuhlmeier, the school can only limit speech if they are doing so with “pedagogical concerns”. However, the school wasn’t limiting her free speech! This girl was doing to opposite of free speech. Not speaking!

    Do I think the District court did the moral thing? No. Did they decide what they should have? YES! Both court cases mentioned above does not convict the school of any wrongdoings. This is like the Theroux family. EVERYBODY hates them and everyone thinks what they are doing is wrong. But can you actually take them to court? Well, no, because under our Constitution, they are doing nothing wrong. The only way this school will be found guilty is if the Supreme Court hears it and goes against the standing set by the District court, setting a new precedent of free speech in schools. Until that happens, what the school did is completely ALLOWED under law!

    Hooray for our Government System!! (Sarcasm)

  9. Connie Capone says

    George, you can’t take the emotion out of a rape case. Simple as that. As far as disruptions go, high school cheer leading isn’t exactly a sport dependent on each other’s participation like crew is. The stunts that high school level teams perform aren’t usually that difficult, have you been to the pep rally’s? Regardless, a fill in is as simple as beckoning a girl on the bench. She didn’t HAVE to cheer, you’re right, and she chose not to! The decision to not cheer came at the point where her team was specifically cheering for him, not just at some random time during the night.

  10. Mike Petuskey says

    I think it’s absurd how the school kicked her off the team for not rooting for a man who raped her. I’d love to see the principal and VP in that spot and see what they do. It truly is hard to believe that people can be this cold about something as serious as rape.

  11. Jhonatan Garcia says

    Connie you also have to take in that this school is mostly dependent on sports, and you do not know how they cheer or if their the best in the state. Those factores however do not matter the simple truth to this story, is that what the school did is legal under OUR GOVERNMENT. I am against this completely, however what she did was a disruption. There are something i would like to know about the scene that is crucial, Did her classmates join in her DISRUPTION?

    This case completely shows one of the many flwas of our government!!!

  12. Joe LaCerra says

    While H.S. not cheering is a minor disruption, how could one root for someone that violated them?? I support her 100% for not cheering for Bolton. The real blasphemy in this situation is the allowance of Bolton to play for the basketball team when he is an alledged rapist, just because the team is in a playoff race. Then the school expels him AFTER the season. How pathetic must this school be to be able to expel him after basketball is over. I agree with Cole with the fact that this is a major sport dominating the situation. The school completely weighs the basketball season continuing over ONE girl deciding not to cheer during ONE certain situation. I also agree with Jhonathan that our government has many flaws. H.S. is wrong for “disrupting the situation”, but Bolton is perfectly ok to continue his season when he is a prime suspect of a rape crime. Blasphemy!

  13. Bobby Kelly says

    I completely agree with george in the fact that she did have a disruption. Like he stated, she was on the team to cheer and that is her job. By not cheering, it is a disruption for the school. Do i believe that H.S. has the right not to cheer for someone that raped her? Yes. Do i believe that the high school’s decision for punishment could, and should, have been overlooked? Yes. However, you cannot make something illegal because of another illegal task. Two wrong’s don’t make a right. The fact of the matter is, the school didn’t FORCE her to be on the cheerleading squad. Rules are rules, if your a cheerleader, you cheer. If she doesn’t want to cheer because she got raped, she shouldn’t. Her argument is that the school was going to make her cheer for the boy. She could choose not to cheer for him, but then she would have to choose to not cheer at all.

    On the other hand, the principal and staff could have taken into consideration that H.S. was RAPED by the boy. It’s difficult to cheer for someone who raped you; I know I couldn’t do it. But at the same time, if two boys on a team that I cheered for raped me, I don’t think I would be going back to cheer anymore. But hey, maybe that’s just me.

    I think a huge underlying problem about this case is that the boy was only expelled after basketball season. This wasn’t a broken school rule; the student committed a huge crime. The school obviously didn’t punish him because they knew they needed him for the basketball season. There is no reason the boy should be able to finish out the season after everyone knows the boy committed that crime; no matter how important sports are.

    This case is one of morals. The girl got raped, but it was her “job” to cheer. If you don’t do your job, you get fired. If you are working a true occupation, and something tragic happens to you, you take off, and then come back and do your job. You cannot stop doing parts of what your supposed to do because of that event. You will get fired. So in a way, this was a wake up call for H.S. Moreover, the boy got away with finishing his season because the team “needed him”. Really? Come on now. That is absurd. No one should get a punishment as big as expulsion for rape postponed because they needed him to play a sport. Let’s not forget that sports are only games. This case can be a big building block on the moral beliefs of people today. I’m sorry the girl got raped but all in all, what the school did was wrong, not unconstitutional or against the law.

  14. Hoban says

    Before I get to the questions at hand, I really hope the coach, principal and assistant principal who berated H.S. before kicking her off the team have moved on to professions that doesn’t involve direct interaction with young people…or any people for that matter.

    1. Not cheering was in no way a school day disruption. She did not impede the school’s ability to function – just the coach, principal and assistant prinicpal’s collective abilities to live with their moronic decision to put a high school sport over the welfare of one of their other students. I understand why they reacted that way – how would you feel if a high school girl showed you just how shallow and insensitive you were by not saying a word? And, as an English teacher, I can’t help but notice the sweet, sweet irony in H.S.’s self-affirmation occurring during a moment went poor Raheem was himself “fouled”. Maybe the fouling guard should’ve taken his case to court and gotten a reprieve himself.

    2. Did it impede the activity itself? Well, that all depends – did he make the free throws? Did they lose by two points or less? Because if she cost them that game…well,that changes everything, doesn’t it?! Standing up for yourself, we can live with…but costing your school a playoff game…that’s a whole different level of “wrong”.

    3. Yes, not speaking can be equally as disruptive, and often more effective, as speaking – see “civil disobedience”

    4. And lastly, no, not cheering is in no way a pedagogical concern. Not allowing a student to address immediate and wholly necessary expression is a far greater pedagogical concern than one less voice reverberating off of a gym wall somewhere deep in the heart (clap, clap) of Texas.

    Great article, Joe. While the question itself is a tricky one and a great debate, it’s easy to lose yourself in the complete lack of compassion on the part of the administrators who managed to make an already disgusting situation even more atrocious.

    And, George, you got some faulty logic there, brother. If I were on a football team and someone on the other team raped me, I totally wouldn’t want to tackle him. Just sayin’.

  15. NickTom says

    As others have, I also agree with George. The secondary point to this case is that he was finally charged, playing basketball or not, he was charged. The primary point is that the girl was kicked off of her cheerleading squad because she didn’t cheer when required to for an athlete who raped her. I do believe that she caused a “disruption” to the team. It’s not like I was there so I don’t know what was going on, but she may have been able to handle the situation differently. She could’ve asked to go to the bathroom or something along those lines as ridiculous as that sounds. I know in basketball there’s at about 1-2 minutes of time during the time which the player is fouled, and the time in which he actually takes the shots. And to the school, in no way should she have been kicked off the team. No, she didn’t do what the “sport” (federal judge ruled it not a sport this past july, besides the point) required her to do, but there are different ways of punishment.

    Very well written Mr. Costal.

  16. tbridel520 says

    This is an example of our society needing to put our priorities in order. School, sports, and personal rights are often mixed up. The fact that the jury placed high school basketball over H.S.’s rights is outrageous. There shouldn’t have to be a constitutional argument, because he shouldn’t have been on the basketball team. If the jury had done the right thing in the first place, H.S. wouldn’t have had to refuse to cheer.

  17. Alyssa Lutgen says

    After reading this article I have little faith in the school system’s decisions. I found it appalling that a victim of rape could be punished for not supporting her attacker, but the raper himself was permitted to complete the basketball season before his explusion. This article, sadly, shows where some school’s priorities lie, and the lack of concern today in making a school zone a safe haven for anyone who enters. I think that if a cheerleader doesn’t want to encourage the success of a player, whether or not the reason is as simple as an argument or as complex as a rape case, she should not have such serious consequences for doing so.
    I believe that H.S’s First Amendment rights were violated. H.S. did not in any way disturb the peace, distract the viewers, or harm anyone by not speaking. She simply made a statement without saying anything at all, and she shouldn’t have any consequences for doing so.

  18. MichelinaHesse says

    I think that after reading this, I have a different perspective of school systems. H.S. was a girl not supporting her attacker, and there is nothing wrong with not cheering during one play in a basketball game. Although it is what she’s suppose to do, she was simply speaking out to the school, for herself, and for others. It’s absurd for a school to kick a girl off a team after she didn’t cheer in one play, and it was because a guy who hurt her mentally and physically was playing. I don’t even know why the kid was allowed to play on the team after he did something like that. Shouldn’t the basketball coach think it looks bad for the team and school?
    I think that the cheerleader’s First Amendment rights were violated. She wasn’t disrupting the peace. She wasn’t making her team lose by not cheering for one foul shot. She was just standing up for herself, and honestly, no one probably even noticed she didn’t cheer except for her coach.

  19. LeslieRay says

    I was horified after reading this article. I believe that H.S.was poorly mistreated, I believe that H.S’s well being was not in the school’s interest, and I believe that H.S’s dignity was ripped away from her. I think that the school district is atrocious for not discipling the rapist immediately after learning of his horrible doing. H.S. had every right to not have be passive and not to cheer for her rapist. The principle and the other administrators affliated with the situation did not have H.S.’s interest at heart, but rather had their selfish desires to advance the school’s basketball team. H.S. was just an ordinary, innocent girl who was raped and when she chose not to cheer for her rapist was punished. This discusts me.

  20. veronicabassaner says

    I agree with Michelina. After reading this, I have a very different perspective of school systems. H.S. was raped, her self-worth was taken from her, and she was obviously treated unfairly and pathetically… whether it was legal for the school to do that or not. Inside a stadium full of 7,000 cheering fans, if one cheerleader out a squad of, let’s say thirty, quietly steps back and folds her arms during a cheer, I’m sure that was not even noticed, making it not a “HUGE distraction”. But, the part that disturbed me the most was that he was only expelled after the basketball season was over. Obviously, faculty and the administration knew of the rape accusations and that was most likely one of the key roles in why H.S. was so quickly reprimanded in the hallway and then kicked off the team.

    Bottom line, what happened to this poor girl was just absolutely pathetic. However, whether the judge practiced strict constructionism or judicial activism would play a key role in the decision of this case. If the judge is a strict constructionist, then he would “take the emotion out” of the rape case because he believes in little judicial interpretation, and since being a cheerleader is something H.S. did voluntarily, that was her purpose for being at the game. However, even though I may be getting tangled up in empathy for H.S., I surely hope that a liberal judge hears this case for the sake of H.S.’s own well-being and for her to get justice.

  21. SMathis says

    In the April 2011 edition of Seventeen magazine, H.S. (Hillaire) let her story be heard to all. Her words exactly, “When Rakheem stepped to the foul line, I was shaking. Standing in my cheerleading uniform on the sideline of my Texas high school gym, I had no problem rooting for my basketball team– but I had a big problem rooting for HIM. Three months earlier at a house party, Rakheem had attacked me and forced me to have sex with him. He was arrested two days laters and was sent to a different school temporarily. Now he was back, and my coach expected me to wave my arms in the air and chant, “2,4,6,8,10, come on Rakheem, put it in!”? No way.” The school made a domino effect of bad decisions. Letting the attacker come back to the same school as the victim was dumb mistake number one; next, it’s not like the victim refused to cheer for the whole team, it was only her attacker. She even said “During the first game Rakheem played, I crossed my arms instead of cheering when he came to the foul line. (I didn’t plan to do this ahead of time, but I was so angry that it felt right.)”. As Michelina said, no one probably even noticed she didn’t cheer except for the coach; Kicking the victim off the squad was mistake number three. Although in the South cheerleading is given a higher level of regard (football players and cheerleaders are the most popular in the school), it still shouldn’t have been taken as far as kicking her off the team for not cheering for her RAPE ATTACKER. Not only did the school give themselves a bad name; not only did the school make horrible choices; not only does the girl’s family have a good choice at winning the case if it goes to the supreme court, but the first amendment gives you the freedom to make a statement… her statement was to not say anything.
    She didn’t ruin the game for anyone nor did she make a big scene about her attacker being allowed to play after raping someone; she simply sat back and chose to stay quiet and possibly even try to save the school from getting a bad name, but they managed to screw that up for themselves on their own.

  22. Langsterr Oudemans says

    Oh snap, does anyone see how the man’s name in the case is John Doe?!?!?! hahahahaha!
    I believe that this girl had rights that were definitely violated, but in terms of her first ammendment rights being violated i am still a little unsure. Even though she had a peaceful, quiet protest, she may have been a slight disruption to the event, but being kicked off the team is very unfairly blown out of proportion. (Maybe they could use the fact that she was practicing her right to freely protest.) No one was mentioned to have complained, no one was mentioned loosing the basketball game becasue she didnt cheer, and no one was very disrupted except for the principal and coach. The school should have taken care of the boy in the first place, not waited until he was finished wining the school a basketball title. If the school had done the proper thing, we would have no current problem.

  23. keating52 says

    So your telling me a high school basketball player can rape a cheerleader, play in the playoff game, and be felt as a victim because his victim didnt cheer for him. this is pathetic by the school, the coaches, and our government. our government shouldve had this kid out of school a lot quicker than it actually happened. he was arrested for rape and still went to school with his victim! there is something wrong with America today.

  24. gsmith says

    I believe that kicking the girl off of the team was a drastic measure that didn’t have to be taken. Considering the situation, it was definitely reasonable for her to not cheer for the boy who wronged her so. Actions should have been taken far more quickly, because if this boy raped someone once, who says he won’t attack like a wild animal again? I feel that the coach made the wrong descision in kicking H.S. off of the team, however, I don’t feel like her rights were violated. That would be like saying the rights of a student who talked back to a teacher and got sent to the office were violated. Still, this situation isn’t right in any way.

  25. mtotheaatothec says

    This is honestly crazy. One, how could the school see the boy as fitting of playing his sport of choice but the girl not? Thats obserd to me. How could this kind of insesitivity be taken on the behalf of a school? Kobe gets accused for rape and there is an outcry, but some random kid does it in a smal town school and its not the biggest item on the schools agenda? People need to get priorities straight, the kid could have been the next coming of Lebron James but he had no right to play in a game he cherished after such a violent accusation. And if he was allowed to play the cheerleader should have the over and above the right to walk out whenever she felt uncomfortable doing what she cherished. They must be taking rape as a minor case of bullying, and not the most degrading form of crime there is.

  26. HSuper says

    I agree with Ben 100%. Action against this student should’ve been taken much sooner than it has. I had my face wrinkled in disgust the entire time I read this article. I’ve no personal expereince in a situation remotly close to this, but I know I take a stubborn stance in everything I do. I know that in her (H.S.’) shoes, I would’ve done the same thing. If she had to stop cheering because she became suddenly sick, would she get yelled at? If she had to not cheer due to a twisted ankle, would she be kicked off the team? I feel that without a doubt, H.S. had all the right in the world to not cheer. Although, I also feel that if she would’ve known her attacker would obviously be there, maybe she could’ve taken a break from cheering for a bit? Until the case made peace? Then again, she shouldn’t be the one giving up anything. The hearless, sick monster that subjected H.S. to much torture should’ve been kicked off of his team. It may not be written, but I’m sure ‘RAPE’ is to be understood in the code of conduct– or at least it should be.

    Her not cheering, did, in no way, disrupt the school. Maybe if she dropped a girl on her face, that’d cause a disruption, but I’m sure not many people even noticed her lack of cheering. And if they did, it’s raise awareness of the super-star scumbag out on the court.

    H.S.’ choice to not cheer didn’t affect any other squad member, and didn’t harm the ‘activity’ in itself. The only people it really did affect would be the coach and the principals. People who for some reason assumed that a cheerless cheerleader would make them look worse than a rapist on the basketball team.

    Not speaking, in my opinion, causes just as much- if not more disruption, as speaking. A ‘cold shoulder’ sort of reaction. ‘Civil Disobedience’ as Hoban said. He put it best.

    And no, not cheering cannot be considered a pedagogical concern. I would say a rape case would be considered a pedagolgical concern, a rapist in the halls maybe, but cheering? You want to worry so much about cheering for a low-life b-baller, you let out a lil’ shout of your own.

    Great article Mr. Costal, you’ve really got me thinking.

    And Mr. Hoban- you rock.