Cheerleader Ethics: Nice Cheerleaders Don’t Say “Fuck,” But They Have A Right To Say It When They Aren’t Cheerleading

Well, this in encouraging. Another court has slapped down a school’s attempt to punish a student for what she wrote online in a personal social media  account. Ethics Alarms has protested the abuse of authority this increasingly common practice represents for many years—I don’t have the time right now to track all the posts down, but I will, and add a link to them here.

U.S. District Judge A. Richard Caputo ruled that the Mahanoy Area School District (In Pennsylvania) violated a student’s First Amendment rights when it kicked her off the junior varsity squad for writing “fuck” repeatedly in a Snapchat post. Do you use that mouth to cheer with, honey?

The teen made the vulgar post on a weekend in May, 2017, off school grounds. It pictured her and a friend holding up their middle fingers with the cogent text, “fuck school fuck softball fuck cheer fuck everything.” She was dressed in street clothes, not her cheerleading uniform, with no pom-pons.  I don’t know how schools got the idea that they could control every aspect of a student’s life and speech to this extent, but too many try. And too many get away with it.

She was angry after only making the junior varsity squad at the end of her freshman year, when she had hoped to win a spot on the varsity squad. After she expressed, in her post, the empty nihilism of modern life, subtly evoking the nihilism  of Sartre, Salinger, Ginsberg,  Ferlinghetti, and Zappa, the cheerleading coaches suspended the teen from the squad for a year. Squad rules condemned disrespectful behavior and online posts of “negative information” about cheerleading.

In his March 21 decision, Caputo said that the team had violated First Amendment rights as laid out in the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District, which  involved students suspended for wearing black armbands to protest the Vietnam War. The lesson of that landmark case, Caputo said, is that student speech can be regulated only if it would substantially disrupt school operations or interfere with the rights of others.

The school district had argued that the teen and her mother had voluntarily waived the teen’s First Amendment rights by agreeing to the cheerleading rules before the tryouts. Ah, yes, the old waiver trap! The lawyers out there in Ethics Alarms land can guess what’s the matter with this theory: The district had not supplied enough information for the waiver to be informed and valid, and anyway,  the judge correctly noted, “conditioning extracurricular participation on a waiver of a constitutional right is coercive.”

Incredibly, the district tried this Hail Mary in its brief: it  argued that there is no constitutional right to participate in an extracurricular activity such as cheerleading, so there was no constitutional violation when the teen was removed from the squad. I know the lawyers came up with this one, and lawyers will try anything in a weak case, but I wouldn’t be comfortable having my kid be taught civics, history and logic by a school that thought that argument made sense.

No, Judge Caputo said.  The district was infringing the right to freedom of speech, not the right to participate in a sport.

Caputo ordered the school district to pay nominal damages of $1 and to expunge any record of disciplinary action from the cheerleader’s record. I am happy to say that  The American Civil Liberties Union of Pennsylvania represented the cheerleader, so it still does occasionally do teh job its supposed to do, rather than engaging in partisan politics.

__________________________

Source: ABA Journal.

 

15 thoughts on “Cheerleader Ethics: Nice Cheerleaders Don’t Say “Fuck,” But They Have A Right To Say It When They Aren’t Cheerleading

  1. Interesting.

    I am glad some parents are willing to bear the expense and effort of challenging this totalitarian nonsense by schools. I understand that it will always exist, but every additional straw that snaps hopefully gets at least one or two other schools to rethink their reflexive speech despotism.

    • This has gone on for a long time. When I was in elementary school, the bus stopped at my driveway. Well, a neighborhood bully came along one weekend and started throwing rocks at me from my yard. I told him to get out of my yard and he said “I can be here because it is the bus stop”. Well, he kept throwing rocks at me so I hit him. The school whipped me because “it’s the bus stop” and my parents were told the police would arrest them if it happened again.

      This is why you never, EVER want a school to take on bullying. Nine times out of ten, schools back the bullies.

      • That would’ve ended badly if my parents had been involved. They once almost forced a teacher out of her job for wrongfully paddling me. They relented only after she abjectly apologized in front of me and my parents.

        Different times, different places, I guess. But I do take your point, and it is unfortunately all to often true.

  2. Tangential: the mention of Lawrence Ferlinghetti evoked fond memories . . . of this past Sunday, just down the street and around the corner, where it seemed every long-haired grey head, creaky joint, quirky smile, and beatnik meme in San Francisco had come in answer to this ad: *Sunday, March 24th 1-5pm FREE
    On Lawrence’s birth date, the public is invited to an open house birthday party at City Lights Bookstore with concurrent programming throughout the afternoon at three other North Beach venues: …

    Being lightly acquainted with Ferlinghetti and his live-in “girlfriend” of 70 years at press screenings of all the latest genre science fiction movies released since the early 80s, I have had opportunities to enjoy his energetic and contagious celebration of life and freedom of speech. (When recently asked his opinion on San Francisco today, his answer echoed the disdain of several Ethics Alarms commenters, describing the city more in terms of its aesthetic but no less disapproving, as “an artists’ theme park without the artists.”). An afternoon of Ferlinghetti fans wasn’t tempting, though — I don’t balance very well in crowds of revolutionaries these days, so I just collected information as it trickled back.

    Ferlinghetti has lately completed and had published “Little Boy,” his (pick one) autobiography, free-form novel, or poem. The book, 12 years in the creating and mostly hand-written due to the author’s encroaching blindness has, we are warned, little or no paragraphing and virtually non-existent punctuation. A Chinese neighbor of mine who had gone around to the birthday bash at the bookstore to mingle with the throng and pick up a present for her grandson in college, had two things to say about the main event: she had never seen so many old happy white people on the street, and she would not as planned buy Ferlinghetti’s book for her grandson because he already “write enough bad story.”

    Thanks for the timely trigger, Jack.

  3. The “no constitutional right” dodge isn’t as desperate of a Hail Mary as it seems like in isolation, though. It’s the same dodge that justifies a multitude of infringements in the name of “safe air travel” (Hey, you have no RIGHT to fly on a plane!), and gets heavy favorable coverage when its used against The Wrong Sorts of People (Hey, you have no RIGHT to be a SCOTUS justice!)

    It’s become a very popular trope and the school had every reason to believe could work. Their mistake is that cheerleading represents privilege (boo!) while being vulgar on social media represents being hip and modern (yay!)- thus their argument will be viewed as a stupid argument struck down by a smart judge instead of a brave argument struck down on a technicality by a mean old white judge.

    • Ooh, I thought of another one- The constitution doesn’t specifically say you have the right to have your restaurant in a given city, therefore it’s fine for the city to prevent you because they don’t like how you donate to charity!

  4. “conditioning extracurricular participation on a waiver of a constitutional right is coercive.”

    Actually, the Supreme Court disagrees with this statement. In the Board of Education v. Earls decision, the Supreme Court held that it was permissible to require drug testing for extracurricular activities. The Constitutional rights of the students were not violated because it was extracurricular and athletes are role models. This is a particularly egregious decision because in the school district in question (1) you get grades on your transcript for ‘extracurricular’ activities and (2) ‘extracurricular’ activities are required for graduation.

    This decision really solidified my view that the Supreme Court either just rules based solely on their personal wishes or it is composed of idiots. The Earls case also proves that the school district in question doesn’t know the meaning of the word ‘extracurricular’. This continues the joke that judges claim children have 4rth Amendment rights, they are just unable to find them any time they look for them. The New Jersey v. T.L.O. case is another good example of that.

  5. The larger implication in this small instance is that right now, here in America and in Europe, there have been definite moves that presage the beginning of a lower-intensity legal-cultural battle to silence people who oppose the present order.

    • Oh, I wouldn’t say it is lower intensity. The yellow-vest protests are far from low intensity. I think the EU threatening to remove voting rights from any member nation whose citizens don’t vote correctly is hardly low intensity.

    • It’s gone! I was going to watch that later, too. “No comity without commonality” is too inconvenient an idea for the great unifiers.

      • The fellow himself took it down. Not sure why. He is an odd one but I find him interesting. Not sure how to interpret his associating the Black Sun (Schwartz Sonne) symbol with Christian symbols. He is pushing a strange angle.

        But this does illustrate a blending of symbols that is going on.

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