Schools' Right to Manage Extracurricular Activities

402 Fed. Apprx. 852, 2010 U.S. App. LEXIS 19368 (5th Cir., Sept. 16, 2010)

"Texas School District Didn't Violate a Student’s Constitutional Rights When it Removed Her From The Cheerleading Squad"

By Richard Fossey

Professor & Mike Moses Endowed Chair in Educational Administration, University of North Texas at Denton, TX


Robert LeBlanc

Dean & Professor, College of Education University of St. Thomas at Houston, TX

In an unpublished opinion, the Fifth Circuit Court of Appeals upheld a trial court decision to dismiss a case brought by a high school student and her parents against the Silsbee Independent School District in East Texas. Doe v. Silsbee Indep. Sch. Dist., 402 Fed. Apprx. 852, 2010 U.S. App. LEXIS 19368 (5th Cir., Sept. 16, 2010). In May 2011, the U.S. Supreme Court denied certiorari. Click below to view commentaries from an administrator's perspective, and a professor's perspective. An Administrator's Perspective A Professor's Perspective A Silsbee high school student identified only as H.S. alleged that she had been sexually assaulted at a party by two male high school students, both varsity athletes.

Prosecutors investigated, but a grand jury declined to indict the two students. (According to a television news report, a special prosecutor was appointed and one of the students later pled no contest to a Class A assault in September 2010 and received a suspended sentence.) H.S. was a cheerleader at her high school, and she later refused to cheer for one of her alleged assailants at a varsity basketball game.

According to the court, H.S. was “contractually required” to cheer for the basketball team Doe v. Silsbee Indep. Sch. Dist., 402 Fed. Apprx. at 852). Richard Baine, Jr., Silsbee ISD’s superintendent, and Gaye Lokey, the school principal, informed H.S. that she either had to cheer when other cheerleaders cheered or go home. H.S. chose to leave the basketball game, and she was later removed from the cheerleading squad. H.S. and her parents sued Silsbee I.S.D., Superintendent Baine and Principal Lokey, charging them with violations of her rights to due process, equal protection, and free speech. Plaintiffs also sued District Attorney David Sheffield, claiming that he had violated her liberty right to be free from bodily injury and stigmatization in violation of the Fourteenth Amendment’s Due Process Clause in the way he had handled the criminal investigation.

In a brief opinion, the Fifth Circuit rejected all of plaintiffs’ claims and affirmed the trial court’s dismissal of their lawsuit. H.S. had no constitutionally protected interest in participating in extracurricular activities, the court ruled, citing a Texas Supreme Court decision, NCAA v. Yeo, 171 S.W.3d 863, 865 (Tex. 2005). Therefore, she could maintain no due process claim arising from her removal from the cheerleading squad. H.S.’s claim to a violation of equal protection also failed, because she had not made a showing that she had been treated differently because she was female, as she alleged. Finally, the Fifth Circuit rejected H.S.’s free speech claim on two grounds.

First, the court said, student speech is not constitutionally protected if it interferes with the work of the school, citing Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969). Second, the court pointed out, a school district is not constitutionally required to promote a particular student’s speech. “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.” Id. at 855.

In addition, the court dismissed H.S.’s constitutional claims against District Attorney Sheffield, finding no liability for any psychological injuries H.S. claimed to have suffered for the way the criminal investigation had been conducted against her alleged assailants. Although attorney fees were not addressed in the court’s ruling, an MS blog author reported that plaintiffs were obligated to pay the school district $35,000, representing attorney fees the district incurred in the litigation.

School Administrator’s Perspective

By Robert LeBlanc

Dean & Professor, College of Education University of St. Thomas at Houston, TX

As a former K-12 administrator, my first thoughts after reading this case are the number of missed opportunities to handle it differently by both the administration and the parents. It is hard to imagine anyone reading about this situation and not feeling sympathetic toward H.S. With good counsel, the parents and H.S. could have been reminded of the difference between her personal and understandable attitude toward the athletes she had accused and her obligatory school role as a member of the cheerleading squad.

Who would have been surprised that the trauma of her recent experience necessitated her taking a brief leave from the squad and not cheering for anyone for a period of time? My guess is the school and family were so caught up in trying to do the “right” thing that do the “reasonable” thing to do was overlooked. My wife is a psychologist and talks about people who would rather be right than happy. Making sure the “rightness” of their position on the issue is proclaimed becomes the end goal, sacrificing happiness along the way. In this case everyone is right but no one is happy. Education Law Professor’s Perspective Richard Fossey Professor & Mike Moses Endowed Chair in Educational Administration University of North Texas Denton, Texas Surely everyone sympathizes with H.S. in this case.

One wonders whether she would have had better luck in federal court had she included a Title IX claim against the Silsbee Independent School District. In a 2008 case, a Washington intermediate court ruled that a college student had stated a Title IX claim of “deliberate indifference” against the University of Washington for the way university officials responded to her allegations of rape by a varsity football player. S.S. v. Alexander, 177 P.3d 724 (Wash. Ct. App. 2008). University administrators steered her towards mediation with the accused athlete, which the court said was an inappropriate way to respond to her complaint.

Likewise, in McGrath v. Dominican College, 672 F. Supp. 2d 477 (S.D.N.Y. 2009), a federal court refused to dismiss a Title IX claim brought by the mother of a college student who committed suicide after charging that she had been gang-raped in a college dormitory. The mother alleged that college officials did not respond appropriately to her daughter’s rape complaint. See Richard Fossey, McGrath v. Dominican College: Deliberate indifference to gang rape in a college residence hall may violate Title IX. TEACHERS COLL. RECORD (April 5, 2010). Available at ID Number 15942. In this case, H.S.’s assault allegation involved events at a party that was not sponsored by the school, and the school district might argue that it had no duty under Title IX to respond to H.S.’s complaint.

But school officials have the authority to require their student athletes to abide by a reasonable code of conduct that includes students’ out-of-school activities. For example, high school athlete who violates a school prohibition against smoking or drinking alcohol can be disciplined by the school even if the breach of the rules takes place off the school campus and outside the school day. See Butler v. Oak-Creek-Franklin School District, 116 F. Supp. 2d 1038 (E.D. Wis. 2000) (high school football player suspended for violating school’s athletic code, including drinking alcohol at a party, was not likely to prevail in lawsuit seeking to enjoin suspension). See also LOUIS FISCHER, DAVID SCHIMMEL & LESLIE R. STELLMAN, TEACHERS AND THE LAW 245 (6TH ed. 2003) (student can be disciplined for conduct taking place outside of school if school rule violation is reasonably connected to operation of the school).