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.

Let me get this straight, Part 2: The Case Ruling

Okay my friends and readers, here is the short version of the Fifth Circuit Courts Ruling. I cut out as much of the Legal mumbo-jumbo as I could without making the document unreadable.


IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 09-41075
Summary Calendar
JOHN DOE, Father of Minor Daughter H.S.; JANE DOE, Mother of Minor
Daughter H.S.; H. S., Minor Daughter of John and Jane Doe,
Plaintiffs - Appellants
v.
SILSBEE INDEPENDENT SCHOOL DISTRICT; RICHARD BAIN, JR.,
Superintendent; GAYE LOKEY, Principal; SISSY MCINNIS; RAKHEEM
BOLTON; DAVID SHEFFIELD,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Texas
No. 1:09-CV-374
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Parents John and Jane Doe, and their minor daughter, H.S. (collectively,
“Appellants”), appeal the district court’s FED. R. CIV. P. 12(b)(6) dismissal of their
42 U.S.C. § 1983 claims against District Attorney David Sheffield (“Sheffield”),
United States Court of Appeals
Fifth Circuit
F I L E D
September 16, 2010
Lyle W. Cayce
Clerk
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 09-41075 Document: 00511235594 Page: 1 Date Filed: 09/16/2010
No. 09-41075
Silsbee Independent School District (“SISD”), Richard Bain, Jr., Gaye Lokey,
Sissy McInnis (collectively, “Appellees”), and Rakheem Bolton.1
This claim arises from John and Jane Doe’s allegation that their daughter,
H.S., was sexually assaulted at a party by Bolton and Christian Rountree,2
fellow students at H.S.’s high school. Appellants claim that after the arrest,
Sheffield told them that despite having enough evidence to go to trial, the grand
jury was racially divided and therefore would not vote to return an indictment
against Rountree and Bolton, who were African-American. The grand jury
ultimately voted against indicting Rountree and Bolton. Appellants claim that
after the vote, they heard derogatory comments in the community about H.S.
that indicated a detailed knowledge of the official investigation and grand jury
proceedings.
As a cheerleader for SISD, H.S. was contractually required to cheer for the
basketball team, whose roster included Bolton. At a February game, H.S.
cheered for the team but refused to cheer for Bolton individually. As a result,
Bain and Lokey told H.S. that she had either to cheer when the others cheered
or to go home. H.S. chose to leave, and McInnis subsequently removed her from
the squad for the rest of the year. H.S. was permitted to try out for the squad
again the following year.
Appellants originally filed a complaint under 42 U.S.C. § 1983. Appellees
filed FED. R. CIV. P. 12(b)(6) motions for failure to state a claim. The district
court denied Appellees’ motions but requested that Appellants file an amended
complaint that “clearly and concisely state[d] factual allegations that support[ed]
the elements of the asserted causes of action.” Appellants filed an amended
Pursuant to supplemental state law claims, Bolton is a party to this appeal. He has 1
not filed any briefing on appeal.
Rountree is no longer a party to this appeal. 2
2
Case: 09-41075 Document: 00511235594 Page: 2 Date Filed: 09/16/2010
No. 09-41075
complaint. Appellees again moved to dismiss for failure to state a claim. This
time, the district court granted the motion to dismiss. This appeal followed.
We review de novo a Rule 12(b)(6) dismissal of a claim, “accepting all wellpleaded
facts as true and viewing those facts in the light most favorable to the
plaintiff.” True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009) (internal quotation
marks and citation omitted). FED R. CIV. P. 8(a)(2) requires that a pleading
contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” A Rule 12(b)(6) dismissal for failure to state a claim is
appropriate when the plaintiff has not alleged enough facts to state a claim to
relief that is plausible on its face, and when the plaintiff fails to plead facts
“enough to raise a right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).
To state a claim under § 1983, a plaintiff must allege that a state actor has
violated “a right secured by the Constitution and laws of the United States.”
West v. Atkins, 487 U.S. 42, 48 (1988) (citing Parratt v. Taylor, 451 U.S. 527, 535
(1981)). Appellants claim that Sheffield deprived H.S. of her right to freedom
from bodily injury and stigmatization, which Appellants allege are protected
liberty interests under the Fourteenth Amendment. Specifically, they argue that
subsequent to the grand jury’s decision not to indict Rountree and Bolton,
Sheffield “defamed” H.S. in a press conference and illegally revealed details of
the indictment hearing. Appellants are correct that “bodily integrity” constitutes
a protected liberty interest under the Fourteenth Amendment. See, e.g., Doe v.
Taylor Indep. Sch. Dist., 15 F.3d 443, 450–51 (5th Cir. 1994) (holding that a
student was deprived of a protected liberty interest when sexually assaulted by
her teacher). However, psychological injury alone does not constitute a violation
of bodily integrity as contemplated under the Fourteenth Amendment. See
Parham v. J.R., 442 U.S. 584 (1979) (involving physical confinement); Ingraham
3
Case: 09-41075 Document: 00511235594 Page: 3 Date Filed: 09/16/2010
No. 09-41075
v. Wright, 430 U.S. 651 (1977) (involving corporal punishment); Spacek v.
Charles, 928 S.W.2d 88 (Tex. App.))Houston 1996) (involving corporal
punishment). Furthermore, freedom from false stigmatization does not
constitute a protected liberty interest under the Fourteenth Amendment. Our
case law “does not establish the proposition that reputation alone, apart from
some more tangible interest such as employment, is either ‘liberty’ or ‘property’
by itself sufficient to invoke the procedural protection of the Due Process
Clause.” Paul v. Davis, 424 U.S. 693, 701 (1976). Accordingly, Appellants have
not stated valid claims for violation of any liberty interests protected by the
Fourteenth Amendment.
Appellants also contend that SISD, Bain, Lokey, and McInnis deprived
H.S. of a property interest protected by the Fourteenth Amendment.
Specifically, they claim that H.S. had a property interest in her position on the
cheer squad, and Lokey and McInnis deprived H.S. of that interest when they
removed her from the cheer squad. “[S]tudents do not possess a constitutionally
protected interest in their participation in extracurricular activities.” NCAA v.
Yeo, 171 S.W.3d 863, 865 (Tex. 2005). Moreover, according to the terms of H.S.’s
cheerleading contract, her failure to cheer constituted valid grounds for her
removal from the cheer squad. Accordingly, the district court was correct in
dismissing Appellants’ claim for unconstitutional deprivation of property.
Appellants further argue that SISD, Bain, Lokey, and McInnis violated
H.S.’s right to equal protection. Specifically, they claim H.S. was treated
differently “because she is a female.” “It is well established that a showing of
discriminatory intent or purpose is required to establish a valid equal protection
claim.” U.S. v. Crew, 916 F.2d 980, 984 (5th Cir. 1990) (citing Washington v.
Davis, 426 U.S. 229 (1976), and Village of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252 (1977)). Because Appellants make no showing that H.S.’s
4
Case: 09-41075 Document: 00511235594 Page: 4 Date Filed: 09/16/2010
No. 09-41075
gender motivated any of Appellees’ actions, their equal protection argument
fails.
Appellants allege Sheffield deprived H.S. of her First Amendment right to
freedom of speech by retaliating against her for filing sexual assault charges
against Bolton and Rountree. However, Appellants make no showing that
Sheffield’s alleged retaliatory acts relate to H.S.’s accusations against Rountree
and Bolton. Accordingly, the district court properly dismissed this claim on
Sheffield’s Rule 12(b)(6) motion.
Finally, Appellants claim SISD, Bain, Lokey, and McInnis 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 “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 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)).
Appellants 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. “The question whether the First
Amendment requires a school to tolerate particular student speech . . . is
5
Case: 09-41075 Document: 00511235594 Page: 5 Date Filed: 09/16/2010
No. 09-41075
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. Accordingly, we affirm the district court’s dismissal of Appellants’
First Amendment claim against SISD, Bain, Lokey, and McInnis.
Neither Appellants’ complaint, nor any of their subsequent filings, assert
constitutional violations against Sheffield, SISD, Bain, Lokey, or McInnis upon
which Appellants could plausibly recover under 42 U.S.C. § 1983. Therefore, the
district court did not err in dismissing Appellants’ claims. Furthermore, the
district court was within its discretion to decline to exercise supplemental
jurisdiction over Appellants’ state law claims against Bolton.
AFFIRMED.
6
Case: 09-41075 Document: 00511235594 Page: 6 Date Filed: 09/16/2010

Let me get this straight.

A cheerleader who was raped by one of the players on the basketball team refuses to cheer for him and she now has to pay the school $45,000? Lets explore this a little more.


According to several news agencies and networks HS, as she is referred to in court documents, was kicked off the cheer squad at Silsbee High School, in south-east Texas for refusing to cheer for Rakheem Bolton. Bolton,  the piece of trash scumbag who raped her, got the charges reduced and a slap on the wrist and was able to rejoin the basketball team. HS, refused to cheer for the s.o.b when he was up for a free throw attempt. She was then kicked off of the cheer team. HS and her parents filed suit, and lost the first case and an appeal.


Now here's what I really don't understand. The appeals judges ruled that the girl waved her Constitutional right to free speech by volunteering for the cheer team & fined HS and her parents $45,000 dollars for filing what the judge called a "frivolous" law suit. How  is this a frivolous law suit? How did she wave her Constitutional right by joining a cheer team? This sounds like a case for the highest court in the land right?


Well, HS and her parents took their case to the Supreme Court. This past Monday The Court refused to hear the case and kicked it out WITHOUT comment. Now, I'm no law scholar, but It seems to me this is exactly the kind of case The Supreme Court should be taking. It is the job of The S.C. to rule on matters on the Constitution, and they didn't do their damn job! This girl is now being assaulted for a second time, and its by our so-called justice system. 


How is this JUSTICE? Can someone please tell me, because I don't see it. How the hell could Silsbee High School try to force a girl to cheer for the low life piece of crap that raped her and then punish her for not doing so? 


This is another case of a school protecting a jock at the expense of a meeker party. I know first hand how schools favor jocks over the other students, but this is fucking unbelievable! No, on second thought it is believable, wanna know how? THIS HAPPENED IN TEXAS, that's how. Hell, damn near everyone in this country knows how obsessed Texas is with their sports. For crying out loud, they even made a movie about it. But, this is WAY out of line. 


You know what I'm going to do? I'm going to get on the phone and I'm going to call Silsbee Schools superintendent Richard Bain at his office, (409) 980-7800. I'm going to do it right now. Hang on. 




Damn it! Sent to and left Voice Mail. But, don't worry my dear readers, I will get an answer from this school district.










UPDATE:


I've been reading the Fifth Circuit Courts ruling and It is not sitting well with me in the least. I'm going to try to get an appointment with a Constitutional Law Prof. tomorrow. I promise to keep you all updated as more information becomes available.