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No First Amendment Attorney Fees in Cheerleader Rape Protest Case

By Robyn Hagan Cain on September 15, 2011 | Last updated on March 21, 2019

The Fifth Circuit Court of Appeals ruled this week that a cheerleader who refused to cheer at school events for her alleged rapist does not have to pay the originally-awarded attorney's fees to the parties she sued following the alleged rape.

In October 2008, H.S., a student and member of the cheerleading squad at Silsbee High School, was allegedly sexually assaulted by two classmates, Bolton and Rountree, at a private party. After a grand jury declined to indict either Bolton or Rountree, H.S., as a cheerleader, refused to cheer for Bolton during a varsity basketball game.

H.S. allegedly cheered for the team as a whole, but refused to cheer for Bolton individually; when Bolton shot free throws, H.S. symbolically protested and expressed herself by either quietly folding her arms or going to sit by SISD Cheerleading Sponsor Sissy McInnis.

Following H.S.'s protest, SISD Superintendent Richard Bain, Jr. and Silsbee High School Principal Gaye Lokey allegedly pulled H.S. aside and told her to cheer for Bolton or to go home. H.S. chose the latter, and McInnis and Lokey removed H.S. from the cheerleading squad for her refusal to cheer for Bolton.

H.S. sued the school, school officials, the local district attorney, and the alleged rapists, asserting multiple civil rights violations, including free speech retaliated based on H.S.'s un-cheerful silent protests during basketball games. She was unsuccessful in her lawsuit.

The defendants, asserting that H.S.'s suit was "patently frivolous, unreasonable, vexatious, and utterly without foundation," were awarded attorney's fees totaling $38,903.64. On Monday, the Fifth Circuit Court of Appeals reversed the attorney's fees award with regard to H.S.'s First Amendment claims.

Unlike H.S.'s Equal Protection and Due Process claims, the Fifth Circuit found that H.S. did not fail to allege facts underlying the essential elements of her First Amendment claim. H.S. undisputedly refused to cheer for Bolton, and the defendants undisputedly removed her from the cheerleading team because she refused to cheer. The only question, therefore, was whether H.S.'s silent protest was speech protected by the First Amendment.

Although H.S.'s free speech claim was eventually unsuccessful, the Fifth Circuit Court of Appeals believed that her argument had at least some arguable merit. Even if the likelihood that the audience would understand her protest seemed low, H.S. reasonably could have argued that the audience knew the background of her alleged sexual assault by Bolton and would have understood the meaning of her conduct.

Although her arguments did not win the day, the Fifth Circuit found that the district court erred in concluding that H.S.'s First Amendment claims were "so lacking in arguable merit as to be groundless or without foundation," and remanded the case to recalculate the attorney's fees without the First Amendment defense amounts.

Let's get this straight: a high school student claims that she was raped by a fellow student, and school officials tell her that she must cheer for her alleged rapist at basketball games or else? And then the court insists that she pay their attorney's fees? We're not fans of the negligent infliction of emotional distress (NIED) cause of action, but if ever there was a case that could change our minds on NIED, this would be it.

Go team.

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