Let me get this straight. Part 3: Break down of the Fifth Circuits ruling.

In a blog post below (Part 2), I copied the Fifth Circuits Courts ruling. I want to take some time now to show you exactly how/why this ruling is wrong/unjust. I have to thank my wife, a third year law student who turned legalese into regular speech so that I could explain it easier.

Here is a segment of the ruling where the problem lies:

"Finally, Appellants claim SISD (School District), Bain, Lokey, and McInnis (Superintendent, Principle, & Coach) violated H.S.’s right to free speech under the First Amendment 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. Courts have long held that public school students do not [this quote is important] ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’ Tinker v. Des Moines Ind. Community Sch. Dist., 393 U.S. 503, 511 (1969)."

In the Tinker case cited above, some high school kids wanted to wear black arm bands to protest Vietnam. The school district wanted to stop them, and the court held that the students were not interfering with the school’s purpose, and more importantly, that students do not lose their freedom of speech when they walk into a school. So, a student’s freedom of speech can be limited if it were to interrupt the work of the school (e.g., swearing, shirts with sexual pics or slogans, etc.). 

Now what is the work of a school? To educate students or to hold sporting events? To educate students, right? But, this court basically ruled that the work of the school was also to promote extracurricular activities. Now, my wife and I looked over Tinker and this case for several hours. Nowhere in Tinker does it state that the school’s job is to promote sporting events.

The Fifth Circuit ruling against H.S. continues below.

 "In order to determine whether conduct “possesses sufficient communicative elements to bring the First Amendment into play, [we] must ask whether an intent to convey a particularized message was present, and whether the likelihood was great that the message would be understood by those who viewed it.” Canady v Bossier

Parish School Board, 240 F.3d 437, 440 (5th Cir. 2001) (citing Texas v. Johnson,

491 U.S. 397, 404 (1989))."

So what this says is that the court had to determine whether or not H.S.'s actions (Standing back with arms folded during the cheer for Bolton) conveyed a message on lookers would be able to understand. I think if I saw a cheerleader refrain from cheering for the guy who raped her I would understand quite clearly. Further, this town knew very well that Bolton had been convicted of the sexual assault of this cheerleader. As a member of the public, I would have understood her communication.

The Fifth Circuit continued:

"Appellants (H.S. and her parents) contend the district court erred in holding that H.S. ‘did not convey the sort of particularized message that symbolic conduct must convey to be protected speech.’ Even assuming arguendo that H.S.’s speech was sufficiently particularized to warrant First Amendment protection, student speech is not protected when that speech would ‘substantially interfere with the work of the school.’ Tinker, 393 U.S. at 509."

Now here's the big screw up. Nowhere in Tinker does it say that sporting events are covered under the phrase "work of the school", sporting events where not even brought up in that case. The work of any school is to educate students and protect them while they are in the schools care, that's it.

“‘The question whether the First Amendment requires a school to tolerate particular student speech ... is different from the question whether [it] requires a school affirmatively to promote particular speech.’ Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 270 (1988). 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. Moreover, 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.”

Did you see that? "…this act constituted substantial interference with the work of the school." Now tell me, how is it the work of the school to force a cheerleader who was raped by a basketball player to cheer for said player? And if sporting events are indeed the work of the school, how did her silence interfere with that in any way whatsoever? From what I understand, the game did not stop. She was sent home and it continued without her even being there; so why would her silence interfere when her absence did not?

Now I'm not a law scholar, so I can only give you the information as I understand it once it has been translated out of legalese. So this is what I am going to do. I'm going to set up an appointment with a Constitutional Law Professor as soon as law school finals are over, so I'm hoping sometime next week. I will continue to keep you up to date on all of what I find out.

Until next time my friends and readers.

In the meantime, here are some rules from Tinker that the federal Fifth Circuit completely ignored:

1.      In order for the state, in person of school officials, to justify prohibition of particular expression of opinion, it must be able to show that its action was caused by something more than mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.

2.      Prohibition by school authorities of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with school work or discipline, is not constitutionally permissible.

3.      School officials do not possess absolute authority over their students.

4.      Students in school as well as out of school are “persons” under Constitution and are possessed of fundamental rights which state must respect, just as they themselves must respect their obligations to the state.

5.      Students may not be regarded as closed-circuit recipients of only that which state chooses to communicate, and they may not be confined to expression of those sentiments that are officially approved.

6.      School officials cannot suppress expressions of feelings with which they do not wish to contend.