Cheer for Your Rapist: The case for empathy on the courts

In one of the most horrific stories of the justice system that I have ever encountered, a Texas teeneage who was kicked of the cheerleading team after refusing to chant the name of her rapist was ordered to pay $45,000 in legal fees to the school as punishment for the "frivolity" of her suit to have this decision overturned.

This week, the Supreme Court announced that they would not hear the case, so the judgement will stand.

Let's all pause a moment to say: WTF?!

Here are the fuller details:

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 later told 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.”

Now there a bunch of things that I want to say about this - including why on earth the school district chose to pursue this throught he courts rather than just letting her back on the team. My preferred solution would have been that the rapist himself be expelled or at least forced to transfer schools or at VERY least kicked off the basketball team. Because, um, hello, he RAPED A CHEERLEADER. Maybe he doesn't so much deserved to get cheered for by... anyone at all?

But I'd actually like to take a step back and use this incident to revisit the conversation about the role of empahty in the Court system. If you remember way back in August of 2009, when the Senate was preparing to vote on the nomination of now-Supreme Court Justice Sonia Sotomayor, there was something of a mini-kerfuffle in which the right stirred up a storm of protest over President Obama's declared preference for a Justice who would have empathy and life experience to round out the Court. Commentators chose to huff and puff about  this as if it were somehow a bizarre notion that judges are influenced by their experience. In point of fact, I anyone who pauses for a moment to reflect should realise that there is always a role for discreition in the application of the law - and even more so in the application of justice.

And this case is a classic example of what this means. Any application of the law has to take into account what is reasonable, proportional and fair. The freedom of speech that this student is asking for is so incredibly small - remember, she doesn't want the right to refuse to cheer for the team, or to boo her assailant as he struts up to the free throw line, just to stand silently and not chant his name while he shoots.

And her reasons for wanting that are so manifestly fair and reasonable, so big in relation to the smallness of her personal response - just to not cheer for a few seconds - that the application of the law in this way seems to most of us gratuitiously cruel.
But is the Appeals court wrong, on a hard reading of the law. Well, probably not in fact. If you extrapolate from this case - imagine a student landing the lead in the school play but refusing to speak any of her lines because she's offended by the play. Well, the school would have the right to replace her. It is true that sometimes when a student speaks in a school setting, as when an employee speaks in a work setting she is representing the school not herself.

But the law shouldn't be applied like a blunt instrument. Judges should have some ability to understand that there are many sides to every case that comes before them, and unless they can put themselves in the shoes of both parties to a dispute their judgements, however technically accurate will always be wrong in any meaningful sense. There will always be a disappointed party in any dispute, and often the disappointed party will have good reasoning on their side and will have been hard done by themselves. Only through leavening our justice with some sensitivity do we stand any hope of being fair to everyone concerned. My personal belief is that in free speech cases, we should err on the side of upholding the rights of the individual to speak wherever reasonable as preferred over the right of an institution (such as a school) to... ummm... force students to publicly celebrate violent sexual criminals. (Sorry, still having trouble getting my head around this one... Failure of empathy on my part for the rapist duly noted - I'll work on that. Well, not much, really. But I'm not a judge to it's OK.)

In this case, I think the Court's decision to uphold the school's decision was wrong on it's face - though arguable under the law. But calling her suite frivolous and demanding her family pay $45,000 in legal costs is a spectacular failure of judgement.

When I first started writing this post, I didn't know the gender breakdown of the 5th circuit court, which made this ruling. Having looked it up now, the 3 judges in question were Emilio Garza, Edith Clement and Priscilla Owen. Two women and one man. The first two were shortlisted by George W. Bush for Supreme Court seats.

Appalling from start to finish.

And finally, can I just say that I would never allow a daughter of mine to attend that Texas High School. Shouldn't other parents express some outrage here?