The Work of the School
So, okay. A high school cheerleader (H.S.) in Texas claimed she was sexually assaulted by a basketball player — who later pled guilty, though only to simple assault — and when she refused to cheer for him at a game, she was kicked off the squad. She and her parents sued and, as Tracy Clark-Flory reports (taking from First Amendment Center), the Fifth circuit court told her to get lost.
The first thing to say, of course, is that it’s hardly surprising that a school would not take seriously the fact that a basketball player sexually assaulted a cheerleader; I mean, have you seen how those cheerleaders dress? Obviously they were asking for it, am I right? In other words, the entire cheerleading thing is already so fundamentally about retrograde sexism that the school’s ease in treating her like a sex-object without any right to make choices about her body is, well, completely atrocious, but not surprising. Will you permit me to imply that perhaps the greatest champion of female dignity and equality is not likely to be a Texas high-school basket program whose athlete has been impugned? I believe you will.
But while the reason why she didn’t want to cheer — and the school took steps to punish her for impugning their basketball player — are obviously pertinent, as are the gender implications of every aspect of the case, it’s the reasoning the court used in ruling against her that I‘m sort of startled by. First, they framed her relationship to the school this way:
As a cheerleader for SISD, H.S. was contractually required to cheer for the basketball team, whose roster included Bolton.
What the heck are they talking about? The relationship between a student and her school is a contractual bond? The entire argument flows out of this assumption, but it’s stunningly perverse: since being a cheerleader is something the school magnanimously allows her to do, her refusal to do it exactly as they tell her to constitutes complete forfeiture on her part. They have no responsibility to her, because that’s not how an employment contract work; they are, in short, treating her not like a student to be educated and protected, but as a disposable employee to be discarded when necessary. Again, the fact that the school behaved this way is horrifying but unsurprising; the fact that an appeals court concurred is just horrifying.
But that‘s just a start. Here’s the rest of the relevant language from the ruling. There were a whole series of claims made and dismissed by the cheerleader and her parents (H.S.) but the first amendment one was the strongest, it seemed to me. And that argument was the claim that her
“right to free speech under the First Amendment [was violated] because H.S.’s decision not to cheer constituted protected speech inasmuch as it was a symbolic expression of her disapproval of Bolton’s and Rountree’s behavior.”
After acknowledging that “public school students do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,’” the court set out to determine whether her conduct “possesses sufficient communicative elements to bring the First Amendment into play,” by asking whether “an intent to convey an articularized message was present, and whether the likelihood was great that he message would be understood by those who viewed it.”
They never actually answer this question — which is interesting in its own right — but the way they frame it pretty much says it all. While she doesn’t lose her rights because she’s a student, they are working really hard to describe the rights as narrowly as possible: since a symbolic act only occurs if there was intent and if those who heard it would be able to understand, the implication is that, if these conditions don‘t obtain, the right could not have been abridged. But, as I said, they don’t even answer that own question, saying that even if it were the case, it doesn‘t matter because the real issue is the fact that
“student speech is not protected when that speech would ‘substantially interfere with the work of the school.’”
And they decide that
“this act constituted substantial interference with the work of the school because, as a cheerleader, H.S. was at the basketball game for the purpose of cheering, a position she undertook voluntarily.”
She was there, you see, not as a student supporting her team out of her own free will, but simply as tool of the school, “a position she undertook voluntarily.” The fact that she volunteered to do it indicates that she has no right to say how or where or when she’ll do it: volunteering –signing that mythical contract — means to give up her rights as a student and become a subject. Or, as they put it even more horribly,
“In her capacity as cheerleader, H.S. served as a mouthpiece through which SISD could disseminate speech, namely, support for its athletic teams. Insofar as the First Amendment does not require schools to promote particular student speech, SISD had no duty to promote H.S.’s message by allowing her to cheer or not cheer, as she saw fit.”
The school’s duty does not include promoting its students’ speech. The “work” of the school is the enforcement of compliance.