Legal Brief                                                 Page 10


'2-4-6-8. What's the Sport We

Love To Hate?'   


Joy Baskin

Mention cheerleading to just about any superintendent, and you are sure to evoke a story, especially in my home state of Texas, where tales of cheerleading controversies range from petty disputes to serious acts of violence.

Widely held views to the contrary, there is no protected legal right to be a cheerleader. School decisions about cheerleading — like any interscholastic sports program — should be upheld with any rational justification, and due process is not required before the privilege of participation is removed.

If there is anyone less enthusiastic than a superintendent to see a cheerleading dispute come across the desk, it’s a federal judge. The U.S. 5th Circuit Court of Appeals, which governs Louisiana, Mississippi and Texas, once declared a cheerleading lawsuit “a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court.”

But don’t think a little thing like the law will stand between cheerleaders and their dreams. Disappointed cheerleaders and their parents still fight for their right to cheer.

Common Disputes
When a school district’s lawyer deals with a cheerleading-related dispute, the matter is likely to touch on one of the following issues:

Gender discrimination. Occasionally, male students seek a position on traditionally all-female cheer squads. In light of antidiscrimination laws, male students generally have a right to try out and to participate if selected. However, under most circumstances, a male student cannot insist on wearing a traditional female uniform if a male uniform is designated.

Pregnancy discrimination. A district may not dismiss a pregnant cheerleader on the basis of her pregnancy. The district may require medical certification of fitness to participate, as long as similar certification is required of all students with conditions requiring medical attention. Absent a legitimate governmental interest, such as health or safety, asking a student to submit to a pregnancy test or medical examination may constitute an unreasonable search or invasion of privacy.

Privacy rights. Under the Family Educational Rights and Privacy Act, a school must permit parents to review education records related to their own child. This entitlement is broad enough to include tryout forms, teacher evaluations and any other student records created in the cheerleader tryout process.

Free speech. A recent Texas case with troubling facts re-emphasizes that cheerleading is not a protected right. A cheerleader at Silsbee High School alleged she was sexually assaulted by two male basketball players, and she later refused to cheer for one of the students during a game. She was removed from the cheer squad, and her parents sued, claiming their daughter’s silence was symbolic, protected free speech.

On appeal, the 5th Circuit Court reiterated that students do not possess a constitutionally protected interest in participation in extracurricular activities and ruled that being silent substantially interfered with cheerleading.

Religious expression. Another Texas case considers whether cheerleaders are expressing their own personal views or serving as representatives of the school when they cheer. Cheerleaders in Kountze, Texas, displayed Bible verses on posters at high school football games. Attorneys advised school officials that the cheerleaders, as uniformed spirit leaders, could be perceived as offering school-sponsored messages subject to the limitations of the First Amendment’s Establishment Clause. Others, including the Texas attorney general, maintained the cheerleaders’ decision to display religious messages was private speech, subject to the protection of the Free Exercise and Free Speech clauses. A state court judge recently sided with the cheerleaders.

Suspension for misconduct. Schools often adopt extracurricular codes of conduct or cheerleader constitutions imposing a higher standard of conduct on participants. Most schools require students and parents to sign an agreement. The enforcement of extracurricular codes by suspending extracurricular participation for off-campus misconduct has withstood numerous legal challenges.

Joy Baskin is director of legal services with the Texas Association of School Boards in Austin, Texas. E-mail: joy.baskin@tasb.org


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