On September 12, 2011, in John Doe and Jane Doe v. Silsbee Independent School District, the U.S. Fifth Circuit Court of Appeals in Texas ruled that a high school student will not be required to pay attorney’s fees to the school district for her First Amendment free speech claims, but she will be required to pay attorney’s fees for the claims the Court of Appeals upheld as frivolous.
This controversial case has been in the spotlight since 2008. In October 2008, H.S., a cheerleader at Silsbee High School, was allegedly sexually assaulted by two classmates, Bolton and Rountree, at a private party. The case went to a grand jury. The grand jury declined to indict either Bolton or Rountree.
After the grand jury’s refusal to issue indictments, H.S. refused to cheer for Bolton, a Silsee basketball team member, during a varsity game. H.S. alleged that she symbolically protested and expressed herself by folding her arms or leaving the rest of her squad when Bolton shot free throws. Following H.S. protest, the superintendent and principal of the high school allegedly pulled H.S. aside and told her to cheer for Bolton or go home. H.S. refused to cheer for Bolton, and she was kicked off of the cheerleading squad for her refusal to do so.
H.S. sued, alleging multiple civil rights violations, including being retaliated against for exercising her free speech, due process and equal protection rights. H.S. lost her case. As a result, defendants sought their attorney’s fees, alleging that H.S.’s lawsuit was “patently frivolous, unreasonable, vexatious, and utterly without foundation.” The defendants were awarded attorney’s fees totaling $38,903.64.
The Court of Appeals reviewed whether the award of attorney’s fees was appropriate. The Court largely sided with the District Court that had initially awarded the defendants fees. The Fifth Circuit upheld the lower court’s ruling that the due process and equal protection claims were frivolous and ruled that H.S. had failed to allege sufficient facts to support those claims.
However, the Court ruled that H.S. First Amendment claim, where she alleged the high school violated her free speech rights after kicking her off the cheerleading team in retaliation for her symbolic protest, was not frivolous. The Court found that the defendants had kicked H.S. off the cheerleading team because she refused to cheer. The question was whether H.S. silent protest was speech protected by the First Amendment.
Although H.S. free speech claim was unsuccessful, the Court of Appeals believed that her argument was not frivolous. The Court stated that, even if there were a low chance that the audience would understand her protest, H.S. reasonably could have argued that the audience knew the background of her alleged sexual assault, and would have thereby understood the meaning of her symbolic speech. The Fifth Circuit found that the trial court had erred in concluding that H.S. First Amendment claims were frivolous. The Court remanded the case to recalculate the attorney’s fees award without the cost of the defense relating to the First Amendment claims.