Forecasting Disruption, Forfeiting Speech: Restrictions on Student Speech in Extracurricular Activities

IntroductionAt a basketball game in February 2009, Silsbee High School officials gave sixteen-year-old H.S., a female student and cheerleader, a choice: cheer by name for basketball star Rakheem Bolton or leave the game.1 Four months prior, in October 2008, H.S. had attended a party where Bolton and two other young men allegedly raped her.2 Bolton was arrested two days after the incident, but a grand jury elected not to indict him, and Bolton returned to school in January 2009.3 H.S. began therapy and was advised to maintain her routine as a way to cope with the trauma she had experienced, including continuing to cheer with the high school cheerleading squad.4The squad had a custom of cheering for basketball players by name when the players took foul shots.5 At the game in February, H.S. refused to cheer for Bolton and instead folded her arms, stepped back from the group, and sat down in silence.6 At half time, school officials told H.S. to cheer for Bolton by name or go home, and H.S. left with her parents.7 The following week, the cheerleading coach removed H.S. from the squad for the remainder of the season.8H.S. and her parents sued the district attorney, Silsbee Independent School District ("SISD"), the superintendent, principal, the coach, and Rakheem Bolton.9 They argued that H.S.'s silence constituted symbolic expression, and that removing H.S. from the cheerleading squad violated her First Amendment rights to freedom of speech.10In October 2009, the U.S. District Court for the Eastern District of Texas granted the defendants' motion to dismiss and, in September 2010, a panel of the U.S. Court of Appeals for the Fifth Circuit reviewed the decision de novo and affirmed the dismissal of the First Amendment claim.11 Reasoning that H.S. "was contractually required to cheer," the Fifth Circuit concluded that H.S.'s "failure to cheer consti- tuted valid grounds for her removal" from the squad.12 By participating in the extracurricular activity, H.S. voluntarily forfeited individual speech rights and became the school's representative: "H.S. served as a mouthpiece through which SISD could disseminate speech-namely, support for its athletic teams."13In a four-page opinion, the Fifth Circuit held that H.S.'s silence was substantially disruptive because she attended the basketball game voluntarily, for the purpose of cheering.14 Although in some circumstances schools must tolerate individual student speech, die court reasoned that the school was not required to "promote H.S.'s message by allowing her to cheer or not cheer, as she saw fit."15H.S.'s case tests the limits placed on public school students' First Amendment speech rights when tiiey participate in extracurricular activities.16 Although die Framers in 1791 included the right to freedom of speech in the First Amendment in the Bill of Rights, the U.S. Supreme Court's recognition of students' First Amendment speech rights is relatively recent17 In 1969, in Tinker v. Des Moines Independent Community School Distrid, the Court set out strong protections for student speech in public schools.18 In student speech cases since Tinker, however, the Court has shown greater deference to school officials to regulate school environments.19 The Court has recognized that students' speech rights are "not automatically coextensive with the rights of adults in other settings."20 Those rights may be restricted "in light of the special characteristics of the school environment,"21 and school officials are not obligated to tolerate student speech that "would undermine the school's basic educational mission."22It may be helpful to analyze student speech in extracurricular activities in the context of the broader doctrinal spectrum of courts' student speech decisions.23 At one end of this spectrum, student speech rights are most restricted in the classroom and in other curricular settings.24 At the other end of the spectrum, student speech is least restricted when students speak as individuals, when it is clear that the message conveyed is their own. …