By now, you’ve probably heard this story:
A teenage girl who was dropped from her high school’s cheerleading squad after refusing to chant the name of a basketball player who had sexually assaulted her must pay compensation of $45,000 (£27,300) after losing a legal challenge against the decision.
The United States Supreme Court on Monday declined to hear a review of the case brought by the woman, who is known only as HS. Lower courts had ruled that she was speaking for the school, rather than for herself, when serving on a cheerleading squad – meaning that she had no right to stay silent when coaches told her to applaud.
That the victim should have to pay the school’s legal costs because she sued for the right to be an active participant in her school and protect herself at the same time is the kind of thing that leaves a person wondering how matters got so incredibly fucked up. It takes a lot of failures to get this far. Here is a (probably incomplete) list.
Failure of Humanity
First, of course, we have the rape itself.
The cheerleader and three football players were at a party at the home on Pinewood early Saturday, according to an arrest warrant affidavit filed by the Silsbee Police Department.
The girl told police that three males forced her into a room, held her down and sexually assaulted her, the affidavit states.
I won’t be explaining why this is a failure. If you need it explained, go away.
Failure of Justice
This case was heard by a grand jury three times. The first jury declined to prosecute citing a lack of evidence. That lack of evidence, by the way, included a rape kit and witnesses.
When others at the party tried to open the door, two of the males fled through a window of the one-story house, the affidavit states. The third boy remained behind.
One of the boys who fled left behind a pair of shorts, the affidavit states.
One of the males later returned and made threats so he could retrieve his shorts, the affidavit states.
A second grand jury was convened after the prosecutor was accused of failing to prosecute zealously because he thought the outcome was predetermined. found sufficient evidence to indict after insisting upon hearing everything twice–with no changes to the available evidence. At that point, the victim had already had to testify three times.
The victim, unwilling to deal with more of the slow grind(er) of justice, supported a plea deal for the man she would later be asked to cheer. Instead of a charge that exposed him to the possibility of 20 years in prison and a $10,000 fine, he received two years probation, community service, a $2,500 fine, and an anger management class. (The anger management class is something else I won’t explain, but only because I can’t. Maybe there are no sex offender treatment programs in the area?) He also avoided having to register as a sex offender, so potential future victims won’t see him coming.
Charges against the second adult indicted were dropped, possibly because the victim was unwilling to testify there as well. The prosecutor only said that “unless new evidence is found, the case, which has garnered national attention, is over.” The status of charges against the juvenile accused rapist are unknown, although he’s no longer a juvenile.
This is not particularly atypical, for those few rapes that are reported to the police.
Failure of Priorities
The town of Silsbee, TX is not particularly unusual in being “sports-obsessed.” However, that doesn’t make the school or the appeal court correct when one argues and the other accepts the idea that “This act constituted substantial interference with the work of the school because, as a cheerleader, HS was at the basketball game for the purpose of cheering, a position she undertook voluntarily.” Sports may be organized around schools, but that does not make them the work of the school. In this day and age of restricted funding, that really, really ought to be self-apparent. Ditto for cheerleading, and doubly so for the sort of cheerleading that isn’t a competitive sport itself.
Failure of Safety
This is technically a failure of priorities as well. Learning is supposed to be the first priority of schools, and in order for learning to occur, students need to be undistracted by concerns for their security. If there are not policies in place to deal with conflicts like these, in which an aggressor wants to take part in activities in such a way as to be a threat to the recovery of the victim, there need to be. Those policies also need to go out of their way to accommodate the victim, not the aggressor. That goes for bullying, and it certainly goes for rape, even if the charges are bargained down.
Do I hear someone saying that sports aren’t learning? Well, for one thing, that’s not what the school and the appeals court argued. For another, that places the imperative to safety even higher. During academic activities, the need to keep the victim safe has to be somewhat balanced by the educational needs of the aggressor. In extracurricular activities, those educational needs are lessened, or perhaps don’t even exist. Then the school becomes primarily responsible for the safety of those in its care.
Even if the only charge the rapist had ever faced was the misdemeanor assault he pled to, even if the accusations were still in court, he, not she, should have borne the brunt of any conflict between their activities. But that wasn’t the only charge. Silsbee is a small town, and everyone in town knew about the rape. School officials certainly knew. So did every other cheerleader and all the athletes.
That means that when the superintendent placed her rapist’s desire to play sports over the victim’s need to establish some control over the situation, he didn’t just make the victim less safe. He made all those cheerleaders less safe. Cheerleaders are already subject to high levels of sexual harassment. The superintendent reinforced the importance of school tribalism, sports, and athletes–all of them–over the safety of the school’s cheerleaders. He told the cheerleaders, the athletes, and everyone else watching that rah-rahing for the school was so important it was worth siding with a rapist over his victim.
Failure of Counsel
The suit against the school district was filed on First Amendment grounds. Although that wasn’t frivolous, since the ability to shun a rapist is a compelling claim, the suit should have been brought on Title IX grounds instead. Yes, Title IX. Former prosecutor Wendy Murphy explains:
Title IX requires schools to take “prompt and effective” steps to redress sexual harassment, sexual assault and any other form of sex discrimination. It also forbids schools from exacerbating a situation by creating or allowing a hostile environment to develop on campus in the aftermath of a reported sexual assault.
…the ruling would have gone the other way if the case had been filed under Title IX. That the victim’s parents did not sue under Title IX is unfortunate but not surprising given how little has been done to educate anyone about the connection between Title IX and sexual assault.
This story has sparked loads of commentary, but so far I have yet to see a single mention of Title IX even though the law has been around since 1972.
Title IX expressly forbids sex discrimination, which includes sexual harassment, the most severe expression of which is sexual assault. Yet 9 out of 10 people asked say they believe Title IX only requires equality in athletics, as in making sure girls can try out for boys’ teams.
Other federal laws that cover discrimination against other “types” of students haven’t morphed and narrowed like this into sports-equity rules.
Schools aptly emphasize that laws forbidding racial or religious discrimination are primarily aimed at preventing targeted violence and harassment–not equal distribution of soccer balls. Presumably this is because being free from violence is far more important than scoring baskets if the goal is to achieve an equal educational opportunity.
That’s right. Our federal laws require that our schools provide women and girls that safe, equal space that this young woman was denied, but almost no one knows it. I suggest you read all of Ms. Murphy’s article (bonus clueless Larry Summers story).
Failure All Around
So that is how a a teenaged victim of a gang-rape ends up owing legal costs to the school district that failed her so badly. It takes an awful lot of people to screw things up on this scale. It takes rapists, a tepid prosecution, an indecisive grand jury, misplaced school pride, an insufficient attention to the duty of protecting a district’s students, and a lack of knowledge of the rights female students are already supposed to be guaranteed.
In fact, as far as I can tell, the only people who did anything right in this situation are the victim and their parents. Remarkably, they also seem to be the only people who have lost by this. Lovely.