Loser Pays When Cheerleader Stripped of First Amendment Rights

In the fall of 2008, a Texas high school cheerleader (known as H.S. in court documents to protect her identity) was locked in a room and raped by a fellow student at a house party. The girl filed charges, but that didn’t put an end to her trauma. 1^st Rape-by her fellow student.

The rapist was temporarily cleared of all charges and allowed to return to school. Fast forward to February 2, 2009: The young teenage rape victim was cheering at the basketball game. This was, most likely, a difficult thing to do considering her attacker is on the basketball team. She participated in all the cheers until her attacker stood at the free-throw line, alone, to attempt free throws. When the cheerleader refused to shout "Two, Four, Six, Eight, Ten! Go, (insert the rapist’s name). Put it in!" she was removed from the squad. 2^nd rape – by the school.

The cheerleader and her family filed a lawsuit against the school, claiming her termination from the squad violated her rights under the First Amendment. The case was dismissed twice; recently the Texas Court of Appeals ruled the suit was frivolous. The Court ruled that the cheerleader had no right to free speech in this situation; the school could dictate the girl’s speech in her capacity as a cheerleader. To add insult to injury, the judge ordered the victim and her parents to reimburse the high school more than $35,000 in legal fees for having to defend against a "frivolous" suit. 3^rd rape – by the justice system.

To be clear, the cheerleader only refused to shout his name and cheer for him as he stood at the free throw line; she performed every other cheer. Now she’s stuck paying over $35,000 of the schools’ legal fee. The ironic twist to all of this is that charges against the rapist were reinstated after he pleaded guilty to a lesser assault charge.

Did the school district fail this young woman? Under the 5^th Amendment, the assailant was presumed innocent until proven guilty; thus, he was able to stay in school and on the team. On the other hand, did the district fail to respect the cheerleader’s 1^st Amendment rights? These are serious legal questions; they are certainly not “frivolous”. In the end, the district’s insensitivity resulted in a lawsuit, and thousands in legal fees were generated at taxpayer expense.

The lawsuit was not filed for or about money; the cheerleader fought for her right to reinstatement to the cheerleading squad. The Court ruled against her; does that mean this was a “frivolous” lawsuit? In America, can pursuing a right granted by the United States Constitution ever be considered “frivolous”?

This case speaks to the chilling effects of a “loser pays” system. “Loser pays” will, often, prevent the filing of serious issue, legitimate, litigation. School districts, insurance companies, large corporations have deep pockets retain high-powered legal teams, to handle the cost of and loss of the litigation they pursue; the average citizen does not. Can the average citizen afford to sue for the negligent or deliberate conduct of a deep-pocket defendant and risk the potential of having to pay thousands of dollars in defense legal fees if the suit is unsuccessful?

In this case, school officials must make a decision if they will accept or refuse the assessed fees. Public pressure has been mounting, including a petition on Change.org. If you would like to support the victim “raped three times”, visit the “Change” website and exercise your First Amendment rights; sign the petition telling the school superintendant not to pursue attorney fee reimbursement. Lawsuit Financial and the Injury Board welcome your comments.

Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide legal finance cash flow solutions and consulting when necessities of life litigation funding is needed by plaintiffs involved in pending, personal injury litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association as well as their ABA Advisory Committee, the State Bar of Michigan and the Injury Board.