By Frank D. LoMonte, Executive Director of the Student Press Law Center, a nonprofit advocacy and legal-services organization based in Arlington, Va.
If hard facts make bad law, then how can easy facts make worse law?
The facts are these. A Texas high-school cheerleader (referred to in court papers as "H.S.") reports to police that she was raped at an off-campus party. One of the accused assailants, Rakheem Bolton, plays for the basketball team. Despite Bolton's presence, the cheerleader dutifully reports to the sidelines and performs her routines - until the squad gets to a routine that incorporates the accused player's name. Rather than cheer for Bolton by name, the cheerleader sits it out. Audience members notice the silent protest and heckle her.
School officials order H.S. to perform the routine, and when she says she cannot, she is kicked off the team for the rest of the school year. The student and her parents file suit, alleging the school violated H.S.'s First Amendment rights. (The criminal case against Bolton, unresolved at the time of the First Amendment case, ended with a guilty plea to a misdemeanor charge of simple assault.)
Easy facts, right? "Right" and "wrong" don't get much clearer.
That's what three judges on the Fifth Circuit U.S. Court of Appeals thought, too - when they ruled, 3-0, in the school's favor, in a perfunctory unsigned opinion, Doe v. Silsbee, jarring for its tone-deafness.
Here is how the panel - Judges Emilio Garza, Edith Brown Clement and Priscilla Owen - summarily dispatched the student's First Amendment claim in their Sept. 16 opinion: