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Texas Cheerleader Who Refused to Cheer Rapist Loses in Court

A Texas high school student who was kicked off her high school’s cheerleading squad after refusing to cheer for her rapist had her lawsuit dismissed as frivolous and was ordered to pay $45,000 in legal fees. The 5th Circuit upheld the ruling and the U.S. Supreme Court has refused to hear the case.

Think Progress (“Supreme Court Denies Justice To Texas Cheerleader Who Refused To Cheer Her Alleged Rapist“):

Earlier this week, the Supreme Court declined to review the case of a recent Texas high school student who was kicked off her school’s cheerleading squad after she refused to chant the name of a basketball player who had allegedly raped her. The Fifth Circuit Court of Appeals, one of the most conservative courts in the country, ruled last November that the victim — who is known only as H.S. — had no right to refuse to applaud her attacker because as a cheerleader in uniform, she was an agent of the school. To add insult to injury, the Fifth Circuit dismissed her case as “frivolous” and sanctioned the girl, forcing her family to pay the school district’s $45,000 legal fees.

According to court documents, H.S. was 16 when she was raped at a house party by one of her school’s star athletes, Rakheem Bolton. Bolton was arrested, but by pleading guilty to misdemeanor assault, he received a reduced sentence of probation and community service. Bolton was allowed to return to school and resume his place on the basketball team. Four months later, H.S. was cheering with her squad at a game when Bolton lined up to take a free throw. The squad wanted to do a cheer that included his name, but H.S. refused, choosing instead to stand silently with her arms folded.

“I didn’t want to have to say his name and I didn’t want to cheer for him,” she latertold reporters. “I just didn’t want to encourage anything he was doing.”

Several school officials of the “sports obsessed” small town took issue with H.S.’s silence, and ordered her to cheer for Bolton. When H.S. refused again, she was expelled from the cheerleading squad. Her family decided to sue school officials and the district. Their lawyer argued that H.S.’s right to exercise free expression had been violated and that students shouldn’t be punished for not complying with “insensitive and unreasonable directions.”

Leading legal scholars have pointed out that this case is about more than justice for one purported rape victim — it’s a civil rights issue that goes to the heart of students’ right of free speech under the First Amendment. Though it might seem obvious to most people that H.S. had every right to sit out that cheer, the lower court insisted that as a cheerleader, she was speaking for the school and as such had no right to stay silent when coaches told her to applaud her alleged rapist.

TP’s account of the facts is accurate; their timeline, however, is somewhat misleading in that it implies that Bolton had already pled guilty to assault at the time his accuser was suspended from the cheerleading squad.

The first link goes back to a story in The Independent and a quick Google search reveals dozens of stories in local and national news sources over the last two years. KDFM reports that Bolton plead guilty to assault last September and quotes the prosecutor saying, “The State feels it’s a fair resolution for the victim, and the victim agrees. I think it’s a fair resolution also. The State is happy he has finally come forward and admitted his guilt.” Bolton was sentenced to “2 years probation, a $2,500 fine, 150 hours of community service, and he must attend an anger management course.”

Back in 2009, KDFM reports, the NAACP protested the indictments of Bolton and  cohort. Apparently, a previous grand jury had failed to indict.

The Ms. Blog, by contrast, has three postings on the matter, treating the allegations of Hillaire Soignet, the former cheerleader as undisputed fact.

Regardless, this is a classic example of hard cases making bad law. The only pertinent facts, legally, are these:

  • Bolton was a player for the high school basketball team
  • The high school cheerleading team is expected to cheer for the basketball team and its players
  • Soignet refused multiple times to cheer for Bolton and was dismissed from the team

Not legally relevant but noteworthy: Bolton had been convicted of no crime at the time of the incident; the misdemeanor assault plea came later.

The 5th Circuit ruled, correctly, that cheerleaders are agents of the school, serving as a “mouthpiece” for it. The notion that individual cheerleaders on the squad have free speech rights while on the floor performing is absurd. Her “sitting out” a cheer every time Bolton’s name is called or is shooting free throws obviously draws negative attention to Bolton–which would appear to be directly sanctioned by the school while she’s in its uniform. Naturally, the school had to dismiss her from the team.

Soignet was in an untenable position and I truly feel for her. Having been, at bare minimum, assaulted, she had a desire to get back to some semblance of her former life. Cheerleading was, presumably, a vehicle for that. And the fact that her alleged rapist was not only free and attending her school but a star athlete on the football and basketball team had to be a constant reminder of the worst night of her life.

But the school had no choice. They couldn’t expel Bolton or prevent him from playing sports. Again, he was not convicted of any crimes. Even after the assault plea, he apparently expects to go on to play college football.

This left Soignet with an awful choice: punish herself for being a crime victim by forgoing a key part of the high school experience or suffer the additional indignity of cheering a man she believes raped her. She tried to do both but it wasn’t an option.

As to having to pay the school’s legal bills, that seems harsh. Then again, the suit actually is rather frivolous. There’s no “right” to participate in cheerleading. Lots of girls are left off the squad each year, usually for no greater infraction than not being popular enough. And, surely, cheering for athletes is a core duty of a cheerleader.

A previous version stated that “TP’s account of the facts is accurate” without pointing out their misleading timeline.

Related Posts:

About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. David says:

    Um… I can only assume it’s available from other media sources, but why the hell are you posting the victim’s full name?!

    Highly-rated. Helpful or Unhelpful: Thumb up 21 Thumb down 0

  2. James Joyner says:

    I’ve never understood the notion that a rape accuser must be sheltered but an accused rapist should have his name and photo plastered everywhere.

    Beyond that, this isn’t a rape case: She’s sued the school. That makes her a public figure.

    Poorly-rated. Helpful or Unhelpful: Thumb up 4 Thumb down 31

  3. Southern Hoosier says:

    Bolton was suspended from the team until a grand jury, in January 2009,

    declined to indict him on charges of sexual assault.

    On September 14, 2010, two days before the 5th Circuit released its opinion, Bolton pleaded guilty to a lesser charge of Class A assault and was sentenced to two years’ probation.

    http://goo.gl/DuweR

    “They start fondling her, disrobing her from the waist down,” said H.S.’ attorney Larry Watts. “Putting her on the floor, she starts saying, ‘Stop, no,’ calls for help.”

    H.S. was then raped, according to court documents, as other partygoers, hearing her screams, banged on the door to the room. When the door burst open, the documents allege, Bolton and Rountree had made their way out a window in an adjacent bathroom.

    H.S. was found under the pool table, half-naked and sobbing. Both Bolton and Rountree were arrested the next day.

    http://goo.gl/QRZui
    How is that not sexual assault?

    Even after the assault plea, he apparently expects to go on to play college football.

    Sound like he is he is already off to a good start at being a pro football player

    Like or Dislike: Thumb up 14 Thumb down 0

  4. Southern Hoosier says:

    James Joyner says:
    Sunday, May 8, 2011 at 08:52

    I’ve never understood the notion that a rape accuser must be sheltered but an accused rapist should have his name and photo plastered everywhere.

    She was 16, a minor when it happened.

    Highly-rated. Helpful or Unhelpful: Thumb up 18 Thumb down 0

  5. There’s no “right” to participate in cheerleading

    That’s really all that needs to be said about this case in the end. I feel bad for the girl, but this was an utterly ridiculous lawsuit.

    Poorly-rated. Helpful or Unhelpful: Thumb up 3 Thumb down 18

  6. Southern Hoosier says:

    Doug Mataconis says:
    Sunday, May 8, 2011 at 09:27

    There’s no “right” to participate in cheerleading

    That’s really all that needs to be said about this case in the end. I feel bad for the girl, but this was an utterly ridiculous lawsuit.

    And Bolton has no “right” to participate as a basketball player.

    They couldn’t expel Bolton or prevent him from playing sports.

    So Bolton does have a right to play.

    Like or Dislike: Thumb up 9 Thumb down 4

  7. James Joyner says:

    @Southern Hoosier: He had a right to try out for the team on the same basis as other students at the school, just as she did. Both made their teams. Bolton did what basketball players are supposed to do: play basketball. Soignet failed to do what cheerleaders are supposed to do: cheer for all the students on the team, regardless of her personal feelings.

    Poorly-rated. Helpful or Unhelpful: Thumb up 2 Thumb down 26

  8. KipEsquire says:

    Let’s hope “conservative” courts keep this reasoning in mind the next time a student (qua “agent of the school”) claims “frivolous” free speech rights to praise Jesus at a commencement speech.

    Like or Dislike: Thumb up 13 Thumb down 3

  9. @SouthernHoosier:

    Is it “fair” that Bolton continued to play while she was forced off the team? Probably not, but the fact that something isn’t “fair” under some standard of “fairness” doesn’t mean that it creates legal rights of any kind or that this woman is entitled to monetary damages from the school (read, the taxpayers) because she didn’t get to be a cheerleader.

    Like or Dislike: Thumb up 2 Thumb down 14

  10. Tano says:

    I think the attitude by James and Doug here is absolutely monstrous. I don’t know what the hell is wrong with you people.
    Anyone with an ounce of decency would be able to clearly see the obvious solution here. Let the girl sit out the cheers for her rapist. How the hell is that going to harm anyone. I’m sure it would barely even be noticed by anyone in the crowd.

    Highly-rated. Helpful or Unhelpful: Thumb up 25 Thumb down 1

  11. @Tano:

    Maybe that’s what the school should’ve done, maybe not.

    In either case, the fact that they didn’t does not create a legal claim by this woman against the taxpayers of Silsbee, Texas.

    Like or Dislike: Thumb up 3 Thumb down 10

  12. Southern Hoosier says:

    @Tano
    If she hadn’t cheered for Bolton, she would have been called a racist.

    Like or Dislike: Thumb up 5 Thumb down 7

  13. Tano says:

    In either case, the fact that they didn’t does not create a legal claim

    The legal claim does not arise from what they didn’t do, but from what they did.

    a legal claim by this woman against the taxpayers of Silsbee, Texas.

    I guess this is your big concern. Money.
    So where have you read anything about this girl suing for money? I have not seen any reference to that in any of the stories I have read.

    Like or Dislike: Thumb up 11 Thumb down 1

  14. Tano says:

    If she hadn’t cheered for Bolton, she would have been called a racist.

    She didn’t cheer for Bolton, that is the whole point of the story.
    And no, she was not called a racist.

    Like or Dislike: Thumb up 5 Thumb down 0

  15. lunaticllama says:

    “[T]he suit actually is rather frivolous.” Really? Perhaps in the colloquial sense.

    It does not sound frivolous in the legal sense. If the lawyer was competent, he was trying to make an argument “extending, modifying, or reversing existing law or for establishing new law.” F.R.C.P. Rule 11. That’s not a basis for Rule 11 sanctions, the bedrock of federal court sanctions.

    I’d like to see what the basis for the court’s ruling was.

    Like or Dislike: Thumb up 10 Thumb down 1

  16. @Tano,

    The lawsuit claimed a violation of her first amendment and other civil rights by the school as a result of being kicked off the squad. She filed the lawsuit after she’d left high school so this was not an effort to get her back on the team.

    42 USC 1983, which is the statute that allows citizens to sue government actors for violations of their rights creates a civil claim (i.e. a claim for money).

    Therefore, yes, she was suing for money.

    Like or Dislike: Thumb up 0 Thumb down 4

  17. Southern Hoosier says:

    Tano says:
    Sunday, May 8, 2011 at 10:12

    If she hadn’t cheered for Bolton, she would have been called a racist.

    She didn’t cheer for Bolton, that is the whole point of the story.
    And no, she was not called a racist.

    People have short and selective memories. It would only be a matter of time before people forgot about the assault charges and came up with their own theories why she wasn’t cheering for Bolton.

    Take the Duke lacrosse team. A lot of people still “remember” they are guilty and racist.

    Like or Dislike: Thumb up 4 Thumb down 0

  18. Mona Shaw says:

    What the school did was sick. Utterly, utterly cruel and sick. Everyone in the school who supported this decision needs review for mental illness. Seriously. These people are incompetent to make decisions for students. Those who hide behind some misguided notion of technical legalities are sick too, i.e. most charitably they are too enthralled by their own egotistic notions of their expertise to give a rational analysis. At worst, they are even pathologically sicker than the school officials; and at least as disturbed as the rapist. So, unbelievably shameful.

    Highly-rated. Helpful or Unhelpful: Thumb up 19 Thumb down 1

  19. @SouthernHoosier,

    Your comments get the timeline completely wrong:

    Oct 2008 – drunken party, assault, arrest, Bolton suspended from football team.

    January 2009 – grand jury declines to indict, Bolton re-instated, rejoins basketball team.

    February 2009 – cheerleader declines to cheer for the alleged rapist.

    November 2009 – Bolton indicted, kicked off of footbal team and out of school.

    September 2010 – Bolton takes plea deal.

    In other words, at the time that HS has refused to cheer and was disciplined, and agent of the state, the grand jury, had declined to indict. He was then returned to regular status on the team. So she was not required to cheer after this guy had pled guilty.

    Like or Dislike: Thumb up 1 Thumb down 4

  20. @lunaticllama

    You might find the 5th Circuit’s opinion of interest.

    Also, it appears that the $45,000 was awarded under Federal Rule of Appellate Procedure 54, not Rule 11.

    Like or Dislike: Thumb up 0 Thumb down 3

  21. Mona Shaw says:

    What kind of monster do you have to be to even think a young woman who was raped should be expected to cheer for her rapist in any context. Who would be okay with this? You have no business near young women.

    Like or Dislike: Thumb up 12 Thumb down 0

  22. Southern Hoosier says:

    Doug Mataconis says:
    Sunday, May 8, 2011 at 10:33

    @SouthernHoosier,

    Your comments get the timeline completely wrong:

    You are probably right. I read several accounts and found them all confusing on the sequence of events.

    Like or Dislike: Thumb up 1 Thumb down 0

  23. @Mona,

    I’m not saying that. I am saying that she does not have any legal claims against the school district for kicking her off the squad for refusing to cheer. This may not be the position that “feels” right, but it’s the law and it’s the correct decision by the court.

    Like or Dislike: Thumb up 1 Thumb down 5

  24. Southern Hoosier says:

    January 2009 – grand jury declines to indict, Bolton re-instated, rejoins basketball team.

    For whatever reason, this is where the justice system failed.

    Like or Dislike: Thumb up 8 Thumb down 0

  25. James Joyner says:

    @Southern Hoosier: “For whatever reason, this is where the justice system failed.”

    No; this is exactly what the system is supposed to do. Prosecutors tried to try him for rape but failed to produce enough evidence to persuade a grand jury to do so. Considering that grand juries will typically indict a ham sandwich, the evidence had to be amazingly thin.

    In any event, having failed to indict, he was a free man and absolutely entitled to be reinstated to the basketball team. In our system, people are presumed innocent until proven guilty.

    Like or Dislike: Thumb up 0 Thumb down 7

  26. James Joyner says:

    @Mona Shaw: “What kind of monster do you have to be to even think a young woman who was raped should be expected to cheer for her rapist in any context. ”

    The only context is that she’s a cheerleader and he’s a player for her team. Quit the squad if you don’t want to cheer.

    Like or Dislike: Thumb up 0 Thumb down 10

  27. Eric Florack says:

    What kind of monster do you have to be to even think a young woman who was raped should be expected to cheer for her rapist in any context. Who would be okay with this? You have no business near young women.

    This is the kind of thing one must expect when one is prone to relying on government for everything.

    Like or Dislike: Thumb up 1 Thumb down 7

  28. An Interested Party says:

    This is the kind of thing one must expect when one is prone to relying on government for everything.

    Oh, indeed…the school, being part of the government, of course, illustrates how evil the government is…the legal case, going the way it did, also shows how evil the government is…maybe she just should have shot him privately right after the incident at the party but before the cheering incident, than the government wouldn’t of had to get involved…evil government problem solved…

    Like or Dislike: Thumb up 8 Thumb down 0

  29. Patrick T. McGuire says:

    There is perhaps unfairness on many levels with this story but, to stay on topic, I am glad that she lost this lawsuit and that the court declared it frivolous. Our society has reached the point where it thinks it can sue anyone for any slight to their “rights”, whether perceived or actual, and expect to win every time.

    While I am not surprised at the behavior of the girl (she is afterall a teenager), I am surprised at the decision of her parents to sue the school. If they wanted to sue anyone, it should have been a civil suit against Bolton. And with all due respect to Mr. Joyner and Mr. Mataconis, I suspect that their lawyer advised them that suing the school would be an easy victory. Hell, he gets paid either way so for him to encourage a lawsuit would make sense from his perspective.

    Hopefully, legal decisions like this one will put a damper on similar urges to sue the hell out of anyone who pisses off someone else.

    Like or Dislike: Thumb up 0 Thumb down 5

  30. Tano says:

    She filed the lawsuit after she’d left high school so this was not an effort to get her back on the team.

    This is just not true. Why are you so damn lazy as to make assertions like this without bothering to find out the truth?

    She filed suit shortly after being kicked off the team, in the spring of ’09. The boy was indicted in the fall of ’09 and expelled. After that, the school actually changed their mind and allowed the girl to try out for the cheerleading squad again, and she rejoined the team. She didn’t graduate till spring ’10.

    Still have not seen any reference to any asking of money in her suit.

    Like or Dislike: Thumb up 10 Thumb down 0

  31. Tano says:

    Our society has reached the point where it thinks it can sue anyone for any slight to their “rights”, whether perceived or actual, and expect to win every time.

    What the hell is wrong with winning a suit against an actual denial of our rights? What is the value of having rights if they can be violated with impunity?

    Like or Dislike: Thumb up 9 Thumb down 0

  32. Southern Hoosier says:

    James Joyner says:
    Sunday, May 8, 2011 at 11:03

    @Southern Hoosier: “For whatever reason, this is where the justice system failed.”

    No; this is exactly what the system is supposed to do. Prosecutors tried to try him for rape but failed to produce enough evidence to persuade a grand jury to do so. Considering that grand juries will typically indict a ham sandwich, the evidence had to be amazingly thin.

    If Bolton was guilty in November, he was guilty in January. Then the justice system failed, because the prosecutor failed to do his job in January. The prosecutor is part of the justice system.

    November 2009 – Bolton indicted, kicked off of footbal team and out of school.

    Like or Dislike: Thumb up 3 Thumb down 0

  33. superdestroyer says:

    Southern Hoosier.

    In look at local newspaper websites and the comments on those websites, it appears that the the Bolton was not indicted for rape because there were questions of consent, underage use of alcohol, a previous dating history, and statements made to other student.s

    There is also the accusation that she screamed rape after the parents found out that she was dating a black.

    My understand that the assault charge is more due to the differences to ages since one of the accused was 18 while the girl was 16.

    After the false rape allegations at Duke and Hofstra, people should be suspect when a women scream rape.

    Like or Dislike: Thumb up 0 Thumb down 9

  34. What the hell is wrong with winning a suit against an actual denial of our rights? What is the value of having rights if they can be violated with impunity?

    She had no rights that were violated in this matter, three courts have agreed on that point. And they are all correct.

    Like or Dislike: Thumb up 0 Thumb down 7

  35. @SouthernHoosier

    If Bolton was guilty in November, he was guilty in January.

    He was not guilty until he was found guilty in court, which in this case happened when he pled guilty to assault as part of a plea deal.

    Bolton has rights too, you know.

    Like or Dislike: Thumb up 0 Thumb down 4

  36. Joe says:

    I hope he sues her for harassment. This girl needs a wake up call. If she was raped, that’s a terrible thing. But he was never convicted of rape. This story is filled with accusations and propoganda. Fact remains that in the United States you aren’t allowed to be punished for something you didn’t do. And like a poster said above, a grand jury will indict anyone on very shakey evidence, because that’s their job. Because you are indicted doesn’ t mean guilt it just means the prosecuter had enough evidence to convince a few of them that he might be able to get a conviction at trial. They didn’t even indict this man. So for all you self rightous people to stand here and call for his demise, you are part of the problem, not the solution.

    Like or Dislike: Thumb up 0 Thumb down 9

  37. @Tano,

    Now that she is out of school the only remedy available to her had she been successful would have been monetary damages. Any claims for injunctive relief in the form of a Court order that she be put back on the team were moot when she agreed to try out for the team the following school year.

    By the way, all the articles I have read on this subject make clear that when she was asked to leave the team in 09 she was told then that she’d be allowed to try out for the team again at the start of the next school year. So right there I would say any “damages” she suffered as a result of the school’s actions were non-existent and, without damages there is no legal claim.

    Like or Dislike: Thumb up 0 Thumb down 3

  38. Southern Hoosier says:

    Doug Mataconis says: Sunday, May 8, 2011 at 11:43

    @SouthernHoosier

    If Bolton was guilty in November, he was guilty in January.

    He was not guilty until he was found guilty in court, which in this case happened when he pled guilty to assault as part of a plea deal.

    Bolton has rights too, you know.

    Poor choice of words. If the prosecutor got an indictment in November, then he would have been able to get one in January.

    Bolton has rights too, you know

    I agree. A generation ago, Bolton would have been lynched by a mob and that would have been the end of the story.

    Like or Dislike: Thumb up 3 Thumb down 2

  39. Tano says:

    They didn’t even indict this man

    Yes the did, you fricken moron.

    He was indicted for sexual assault and copped a plea to simple assault.

    Like or Dislike: Thumb up 4 Thumb down 0

  40. Tano says:

    all the articles I have read on this subject make clear that when she was asked to leave the team in 09 she was told then that she’d be allowed to try out for the team again at the start of the next school year.

    I don’t know what you have been reading,. All the articles that I have read that touch on this subject have stated that she was banned permanently from the team. That was only overturned when the boys were eventually indicted.

    “H.S. was kicked off the squad days later, told she was banned for the duration of her high school career. The initial lawsuit was filed by her parents on her behalf shortly after, claiming their daughter’s First Amendment rights had been violated. ”
    …”After H.S. was kicked off the cheerleading team, school officials relented and allowed her to try out again after the indictments against Bolton and Rountree. “

    LINK

    Like or Dislike: Thumb up 2 Thumb down 0

  41. ponce says:

    Nice example of why Democrats tend to win a majority of female votes.

    Like or Dislike: Thumb up 2 Thumb down 3

  42. anjin-san says:

    This is the kind of thing one must expect when one is prone to relying on government for everything.

    I am curious about something. You drive a truck, right? Where in the constitution does it say that the government can build highways? Why are you dependent on the government to make it possible for you to earn a living?

    Like or Dislike: Thumb up 3 Thumb down 0

  43. @Tano,

    The original Houston Chronicle story on this said otherwise.

    However, it is immaterial because there is no right to be on the cheerleading squad and H.S. has no case.

    Like or Dislike: Thumb up 0 Thumb down 3

  44. If the prosecutor got an indictment in November, then he would have been able to get one in January.

    No, what that suggests is that he didn’t have enough evidence to convince the Grand Jury to hand down an indictment. Considering how little evidence is needed for an indictment, one must assume they had a very flimsy case at that point.

    Like or Dislike: Thumb up 0 Thumb down 4

  45. Southern Hoosier says:

    Joe says:
    Sunday, May 8, 2011 at 11:44

    I hope he sues her for harassment. This girl needs a wake up call.

    H.S. was then raped, according to court documents, as other partygoers, hearing her screams, banged on the door to the room. When the door burst open, the documents allege, Bolton and Rountree had made their way out a window in an adjacent bathroom.

    If it was consensual why was she screaming for help? Why were other party goers trying to come to her rescue? Why did Bolton and Rountree flee through the bathroom window?

    I’m not sure what the statuary rape laws are in Texas, but she was 16 at the time and one of her assailants was 18.

    Even if they had consensual sex in the past, once she says no, it is no longer consensual .

    Like or Dislike: Thumb up 5 Thumb down 0

  46. ZugWoo says:

    Wow, that is really messed up dude. Seriously. The Kangaroo Court system is a JOKE

    http://www.totally-anon.at.tc

    Like or Dislike: Thumb up 4 Thumb down 0

  47. Where in the constitution does it say that the government can build highways?

    Article I, Section 8, Clause 7: “To establish Post Offices and post Roads;”

    Like or Dislike: Thumb up 2 Thumb down 1

  48. No, what that suggests is that he didn’t have enough evidence to convince the Grand Jury to hand down an indictment. Considering how little evidence is needed for an indictment, one must assume they had a very flimsy case at that point.

    Or the grand jury was composed of people who are willing to look the other way if the rapist can help the school win at football.

    Oh right, that would never happen. Texans have absolutely no history of being completely insane when it comes to high school football.

    Like or Dislike: Thumb up 9 Thumb down 0

  49. Again, you can assume that if you want but, ten months after Grand Jury One declined to indict for rape, Grand Jury Two (most likely composed of different people) indicted for sexual assault.

    The logical conclusion is that the facts of the case were sufficient to show a preponderance of evidence for sexual assault, but not for rape.

    Like or Dislike: Thumb up 1 Thumb down 1

  50. Texas state law states:

    Article 56.32(a)(13)
    Victims have the right to compensation, services, or assistance provided directly to a victim for the purpose of supporting or assisting the recovery of the victim from the consequences of criminally injurious conduct.

    Given that a return to cheerleading was likely part of her recovery from the rape, I’d argue that (in Texas anyways), she did have a right to be on the cheerleading squad.

    Like or Dislike: Thumb up 4 Thumb down 0

  51. superdestroyer says:

    It is humorous how the left was willing to take the side of the Jean 6 (local high school football heros) when the black athletes were convicted of assaulting a white male. But when the local black high school foot heros assault a white girl, then the progressives side with the white girl and are quick to throw the black males under the bus.

    One would think after the Duke and Hofstra false rape allegations that everyone would learn not to take allegations as being totally true.

    Like or Dislike: Thumb up 0 Thumb down 7

  52. The logical conclusion is that the facts of the case were sufficient to show a preponderance of evidence for sexual assault, but not for rape.

    Uh, no, it’s not. We have no evidence whatsoever what the motivations of the grand jurors were. Both of our theories are speculative.

    Like or Dislike: Thumb up 3 Thumb down 0

  53. One would think after the Duke and Hofstra false rape allegations that everyone would learn not to take allegations as being totally true.

    Given there appear to be multiple third party witnesses that she was screaming to be let go, these allegations seem much more credible than the Duke case.

    Like or Dislike: Thumb up 7 Thumb down 0

  54. Eric Florack says:

    You drive a truck, right? Where in the constitution does it say that the government can build highways? Why are you dependent on the government to make it possible for you to earn a living?

    Simply because something exists, doesn’t make it the best way to deal with any given situation. Government is not the answer. It’s the problem.

    Like or Dislike: Thumb up 0 Thumb down 4

  55. Both of our theories are speculative.

    And irrelevant to the legal merit’s of S.H.’s claim against the school district.

    Like or Dislike: Thumb up 0 Thumb down 1

  56. steve says:

    Stormy notes what should have been mentioned all along. The rapist’s sports celebrity status was likely a deciding factor in the lack of an indictment early on. Still, I dont think the courts were wrong on this, other than claiming it was frivolous. The fault here lies with the school officials who insisted that she cheer for the rapist. What is she was hoping to get a cheerleading scholarship? I dont think they should have placed his needs above hers. Since everyone would already know the story anyway, I cannot see how it would tarnish anything more than it was already. I think the correct course of action is for the school board to be voted out.

    Steve

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  57. Southern Hoosier says:

    anjin-san says: Sunday, May 8, 2011 at 12:10

    I am curious about something. You drive a truck, right? Where in the constitution does it say that the government can build highways? Why are you dependent on the government to make it possible for you to earn a living?

    Giving someone CDL doesn’t mean the government is giving them a job. It means drivers meet minimum qualifications. It is for public safety.

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  58. Dave says:

    The anger over this case is misplaced; the court was right, the school was wrong. They didn’t have to kick her off the team. That was a choice. And the wrong one. Further, this kid didn’t have any right to play basketball. The school could have (and should have) kicked him off the team with the credible accusation alone. Innocent until proven guilty doesn’t mean anything in a school; kids are getting kicked off of teams for much less at other schools.

    The courts were right, they followed the law and ruled accordingly. The school behaved like a bunch of rapist coddling monsters. Every one of them should be ashamed.

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  59. And irrelevant to the legal merit’s of S.H.’s claim against the school district.

    Yes, but not irrelevant to judging the morality of the situation. The girl may not have legal recourse, but there’s plenty of room to criticize various actors in this situation.

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  60. Stormy,

    As I’ve said above, I mostly agree but some people seem to be conflating their sense of moral outrage with what the law allows.

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  61. c.red says:

    I think I’m with Dave and Steve on this one, the courts did their jobs, but the school treated the cheerleader very poorly.

    There was nothing stopping them from looking the other way while one cheerleader sat out a specific cheer. (Though, yes, that leads to another batch of issues, those seem more easily dealt with to me.)

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  62. Barb Hartwell says:

    If he had not been some star athlete I`ll bet they would have had a different attitude. This girl had the worst thing imaginable happen to her and this is the kind of reaction she gets. We`ll probably see him again in the future, another angry assault against women. This is total BS.

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  63. TG Chicago says:

    I’ve never understood the notion that a rape accuser must be sheltered but an accused rapist should have his name and photo plastered everywhere.

    Until you come to understand this, perhaps you should stop commenting on rape-related cases. It makes you look like a truly awful person.

    If you get raped, I’m sure you’ll want the front page of your local paper to have a big picture of your face under the headline: JAMES JOYNER, RAPE ACCUSER.

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  64. TG,

    How is that different from someone who has their name splashed all over the news papers as: JOHN DOE, ACCUSED RAPIST

    And, usually, the media just leaves off the “accused” part and it becomes:

    “JOHN DOE, RAPIST”

    Just ask the Duke Lacrosse Team how that works out for ya.

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  65. TG Chicago says:

    How is that different from someone who has their name splashed all over the news papers as: JOHN DOE, ACCUSED RAPIST

    Yeah, that’s just the same as being raped. Not different at all. Good point.

    I’m sure the next time you write about the 9/11 victims’ families, you’ll refer to them as “terrorism accusers”.

    And, usually, the media just leaves off the “accused” part

    Including OTB. Check out the headline of this story.

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  66. TG Chicago says:

    (unlike the ThinkProgress piece which James quoted at length, who dutifully put “alleged” in all the right places. Damn liberal media!)

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  67. Your response is mostly a non sequiter and doesn’t really address my point that your argument in favor of anonymity for rape accusers could also be applied to people accused of rape or any number of similar crimes.

    Also, there’s the point that the very idea of laws a policy to keep the identity of an adult (as opposed to a child) who makes an accusation that someone committed a crime secret seem to me to be antithetical to the First Amendment.

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  68. TomB says:

    TP’s account is not even remotely accurate. According to Eugene Volokoh:

    -In Nov. 2008, the cheerleader was allegedly raped by the football/basketball player (Rakheem Bolton) and two others.

    -The alleged attackers were barred from campus.

    -In Jan. 2009, a grand jury refused to indict.

    -The school let the alleged attackers back.

    -In late Feb. 2009, the cheerleader refused to cheer for the player. (“By custom [of the cheerleading squad] Tigers cheerleaders support any player at the foul line by shouting his name. In the first half Bolton was fouled twice. H.S. had been cheering as usual, but each time Bolton went to the line, in a peaceful protest, she folded her arms, stepped back and remained silent while her squad cheered, ‘Go, Rakheem!’”)

    -At that point, the cheerleader was told to cheer for Bolton, or else she would be taken off the squad; she refused, and was indeed taken off the squad (though she “was later permitted to rejoin the cheerleading squad if she would follow its rules”).

    -In Nov. 2009, another grand jury indicted Bolton and another alleged attacker “on charges of sexual assault of a minor.”

    -In Sept. 2010, Bolton “plead[ed] guilty to a lesser offense, simple assault.”

    TP specifically states that Bolton had already been indicted and pled to the charge prior to the incident taking place, in truth, a grand jury had refused to indict him and he was returned to the school and the team at the time.

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  69. It’s also worth noting keeping a rape accusers identity secret is not required by law in the United States:

    http://en.wikipedia.org/wiki/Rape_shield_law#Identification_of_alleged_rape_victims_by_media_outlets

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  70. TomB

    Yes Think Progress makes some very serious factual errors in its piece when it comes to the timeline that I think are causing people to think that this girl was being asked to cheer for a guy who had already plead guilty to misdemeanor sexual assault. That’s simply untrue, and its a discrepancy that several bloggers have brought up with no response from TP, or any indication that they will correct the record.

    Draw your own conclusions as to whether the timeline discrepancy is accidental or intentional

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  71. TomB says:

    Draw your own conclusions as to whether the timeline discrepancy is accidental or intentional

    Indeed.

    JJ needs to correct his “TP’s account of the facts is accurate.” statement. Especially considering he gives the correct version a few sentences later.

    It would be a good start.

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  72. Dave says:

    The timing of the incident doesn’t matter. The school was within its legal right through certainly under no obligation to require a cheerleader to cheer for a person she was certain had raped her. Forcing her to do so was, while perfectly legal, completely unnecessary. And evil.

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  73. TomB says:

    The timing of the incident doesn’t matter.

    If you value accuracy it does.

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  74. Dan Rather says:

    The timing of the incident doesn’t matter.

    Fake, but accurate!

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  75. Wiley Stoner says:

    Were I H.S.’s father I would implement a completely extra legal solution to the rape of my daughter. It would be a low cost solution with little if any cost to the state or school district. It would also prement the perp from repeat behavior.

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  76. Dave says:

    Ok rephrase: the timing of the incident is important to get right. It just doesn’t have an impact on the legal or ethical facts of the case. The school is still within their right to kick her off the team whether the kid had been convicted or not. It was also wrong for them to choose to do so whether he had been convicted or not.

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  77. And if you did Wiley I would expect you to be charged with murder and given Texas Justice.

    There is no justification for vigilante justice

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  78. ponce says:

    “There is no justification for vigilante justice”

    Yeah, it means lawyers don’t get paid.

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  79. sam says:

    “There is no justification for vigilante justice”

    In Zelsland, that is the only kind of justice….

    (Were you fooled by the mask, Doug?)

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  80. sam,

    No, it is rather obvious I’m just waiting for the day when Zels comes back and picks a fight with Wiley.

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  81. TG Chicago says:

    Your response is mostly a non sequiter and doesn’t really address my point that your argument in favor of anonymity for rape accusers could also be applied to people accused of rape or any number of similar crimes.

    You asked how being raped is different from being accused of rape. That’s a foolish question.

    You and Joyner are really showing an ugly side here. And that comes from someone who agrees with you about the actual legalities of the case. (though I strongly disagree with Joyner’s assertion that “the school had no choice”. Obviously they could have chosen to let the cheerleader discreetly bow out of certain cheers. That said, it was legal for them to make the heartless choice they made.)

    But even though I agree, I still am able to show some degree of human empathy for the person who was raped (or, at bare minimum, assaulted) at age 16.

    Do you understand that some people, at least unconciously, blame rape victims for the crime? Do you understand that by publicizing her name, you are contributing to further harm to someone who was raped as a child? I’m not saying that there should be a law to keep her name from being released. I generally think that should be left to people’s common sense.

    If you’re more worried about the occasional man who is falsely accused of rape rather than the many, many women who are actually raped (which clearly you are), then so be it. Wouldn’t a common sense solution be to withhold names of accused rapists (prior to conviction) rather than to broadcast the names of rape victims?

    Like or Dislike: Thumb up 4 Thumb down 0

  82. snjmom says:

    Good Lord, where does it end? I guess the school would have the right to force her to form a study group with all her attackers or take an F.

    What idiocy.

    Not that the legal issues were decided incorrectly, but what a moral swampland of a school board.

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  83. matt says:

    Rapist murderer? Who cares if you can through a football or dribble a basketball…School integrity only goes as far as their team does in the championship apparently.. disgusting.

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  84. matt says:

    through = throw

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  85. Southern Hoosier says:

    Wiley Stoner says:
    Sunday, May 8, 2011 at 16:54

    Were I H.S.’s father I would implement a completely extra legal solution to the rape of my daughter. It would be a low cost solution with little if any cost to the state or school district. It would also prement the perp from repeat behavior.

    You forget the high cost to the taxpayer of keeping her father in prison for life. It’s even more costly to keep them on death row. Also there is the loss of the breadwinner. You can’t support a family on prisoner pay.

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  86. A voice from another precinct says:

    @ Tano: “Still have not seen any reference to any asking of money in her suit.”
    Your assertion is disengenuous as there is not much else to win in a civil suit. Stop being such a weasel.

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  87. [...] OUTSIDE THE BELTWAY – A Texas high school student who was kicked off her high school’s cheerleading squad after refusing to cheer for her rapist had her lawsuit dismissed as frivolous and was ordered to pay $45,000 in legal fees. The 5th Circuit upheld the ruling and the U.S. Supreme Court has refused to hear the case. Bookmark to:web design   [...]

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  88. Jerry says:

    I don’t understand how anyone can make a claim a cheerleader is some form of employee of the school. ESPECIALLY considering how dangerous cheerleading is, and how few resources schools traditionally give to cheerleading programs (compare accident rates with football and next compare doctors/nurses/ambulances on hand to treat cheerleaders. So the SCOTUS decision is bullshit right from that aspect.

    BUT, if she is some form of employee of the school, she should sue the school for creating a hostile work environment.

    What the school did was inexcusable. I am no fan of feminism, the Supreme Court perhaps should have denied cert, but not for the reason they gave, and not without specifically calling out the school as a bunch of dumbasses that should be immediately fired and a warning they would likely be first against the wall when the revolution comes.

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  89. seriously? says:

    There is no justification for vigilante justice

    tell that to bin laden.

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  90. drkrick says:

    They couldn’t expel Bolton or prevent him from playing sports.

    I don’t know about this. Players get kicked off HS teams for stuff like backtalking the coach or being lazy in practice all the time and playing time is an unappealable coach’s call. It’s hard to believe that an allegation of sexual assault would be a less defensible reason for dropping the player if the coach thought it was as serious an offense as, for example, failing to learn the defensive system.

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  91. James Joyner says:

    @drkrick: “It’s hard to believe that an allegation of sexual assault would be a less defensible reason for dropping the player if the coach thought it was as serious an offense as, for example, failing to learn the defensive system.”

    And they suspended him from the team when he was charged. The removed the suspension after the first grand jury failed to indict. It was during this period that the incident occurred.

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  92. drkrick says:

    Understood. My question is about the idea that the school didn’t have a choice in the matter, even after the failure of the grand jury to hand down an indictment. Coaches frequently discipline players in cases where proof up to a legal/criminal standard doesn’t exist (violating team drinking rules whether the student is prosecuted or not, for example) or when the underlying offense isn’t criminal.

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  93. Rob in CT says:

    I think the court may have decided the case in question properly (though ordering her to pay for the school’s legal fees is a step too far). I also think the girl who brought the suit was treated abominably by the school. Ugh.

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  94. Michael says:

    The school didn’t have to let him return to the team, although they had to let him return to school after the first grand jury failed to indict. But I can see why they would let him play, since the charges were dropped.

    What I can’t understand is why they insisted that she cheer for him by name. We’re talking about a minuscule fraction of the cheering in any given game. They were under absolutely no obligation to require her to do that. It was purely elective, and either they got lousy legal advice or they just wanted to spite her for ruining his (and perhaps the team’s) football season.

    If I were advising them, I would have told them that the smart move was to do nothing at all about her silence, because even though they were likely to win in court, this is a situation where even if you win, you lose big in terms of publicity and national scorn (which is the dominant reaction, commenters on this blog notwithstanding). That town and those individuals will forever be known for this incident, so to those who say there’s no justice here, you are only mostly correct.

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  95. WTF says:

    WTF is wrong with our government…

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  96. [...] James Joyner’s post on the Texas cheerleader who had her lawsuit against her former school district thrown out, and her appeal rejected by the Supreme Court, generated much heated commentary. So, I thought this background from Eugene Volokh would be of interest: I think the District Court was mistaken; though the plaintiffs’ claim was rightly rejected, it wasn’t frivolous: There was a plausible argument that the First Amendment should protect the student’s rights in such a situation, though I think it was rightly labeled a losing argument. And the District Court’s analysis struck me as inadequate: [...]

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  97. [...] please, the cited case of the cheerleader forced to cheer for her rapist is horrifying but hardly typical. Indeed, the ball player in question had been suspended from [...]

    Like or Dislike: Thumb up 0 Thumb down 1

  98. Edward Z. Rosenthal says:

    It’s very instructive to note the not-so-subtle level of contempt in the comments of people who believe the cheerleader’s lawsuit to be frivolous. It’s almost a reflexive, guttural reaction, as opposed to a reasoned, considered one. They express no contempt or even negativity for the “alleged” rapist, who, had this crime not occurred in such a backward, primitive locale, would surely have been suspended indefinitely. The cheerleader could have just been temporarily suspended till a more conclusive, rational solution could be considered. As for as the girl dropping the charges, can you image the unbearable pressure she must have been under. I’m sure the town was not supporting her, if not outright scorning her. She faced total ostracization. But sports “stars” are too often treated just a little more equal than others.

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  99. Sonia S. says:

    Yet another sad example of how our society venerates athletes to the point that we believe they can do no wrong,or simply don’t give a crap if they do anything wrong,because after all,they’re a good basket/foot/baseball player and that’s all that matters,right?Some of the men(sports fans,no doubt)posting here have no business raising daughters.The almost godlike worship of athletes in our society is sickening and shameful.There is something wrong with us as a people when someone’s ability to toss a damned ball around practically makes them above justice.No matter how bad our economy gets,people still seem to have $$$ to pay into the sports franchises,to attend games and but merchandise,and high-paid athletes and their franchises never suffer regardless of the economy.As long as we are so obsessed and infatuated with sports to this point we will continue to see these kind of injustices.And no,I’m not saying that no female has never made a false accusation of rape,all I’m saying is that society worships athletes so much that in cases where a rape *did* happen(yes,your precious little ballplayers are capable of it),the only thing anyone seems concerned with is that the poor things may not get to go on to be a big foot/basketball star,boo hoo,they instantly become the victim and the actual victim is seen as the villain.

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  100. Scotty Reid says:

    I agree with the ruling. The alleged rapist had not been convicted and proven guilty of anything and therefore the cheerleader was in violation of the duties she was contracted to do as a cheerleader. Knowing that this guy was on the team and that she would be expected to cheer for him, perhaps she or her parents, should have made the decision that being on the cheer squad was not the best decision for her and that perhaps she should have resign in protest since according to her, he was a rapist.

    A similar case happened in Charlotte, not similar in the cheerleading aspect but a starting linebacker (black) was arrested for the rape of a girl (white) he was dating. Before the investigation was over, before there was a trial and obviously a guilty verdict, the footballer was kicked off the team, kicked out of school and sent to a school for kids who had some sort of criminal infractions or behavioral problems. The footballer was 16 yrs old and the local Charlotte, NC papers plastered this kids face and name all over television, in the newspapersand a local conservative radio host (WBT) made it his crusade to demonize the young man on the airwaves.

    Well as it turns out, after the investigation was completed, the charges were dropped and the girl was said to have made the story up after her father discovered she was dating a black guy.

    If I had been the young mans father I certainly would have gone after the school system for the suspension before my kid was found guilty of anything, I would have sued the girl and her family for defamation, perhaps the local radio host who used the radio show to profess the boys guilt and get the public involved in pressuring the school to suspend the kid and perhaps the local media for publishing his picture and name.

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  101. Peter E (Australia) says:

    While on a personal level I applaud the girls actions. LEGALLY she was wrong, as a cheerleader she is an agent of the school. The core issue is very simple. The surrounding moral issues (which of course have nothing to do with law!) are those confusing the matter.

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