Legal Momentum Briefing Room

High School Cheerleader Dismissed From Squad After Refusing to Cheer for Her Rapists

In 2008, a sixteen-year-old cheerleader reported that she was raped by a basketball player at her school. The girl, known as H.S., said that she was at a party when Rakheem Bolton and a fellow athlete pushed her into a bedroom and locked the door. They proceeded to sexually assault her. Bolton was arrested, but not charged.

Instead of advocating for the victim and working to create a safe educational environment, officials at H.S.'s school encouraged her to avoid the cafeteria and homecoming so as not to raise attention to the issue. But she declined to take part in the school officials' "out of sight, out of mind" approach, and instead refused to cheer for Bolton. She sat on the sidelines while her teammates cheered "Two, four, six, eight, ten, come on, Rakheem, put it in." She was dismissed from the team for her actions. "As a team, I cheered for them as a whole. When he stepped up to the free-throw line, it didn't feel right for me to have to cheer for him after what he did to me," she said.

Bolton eventually pleaded guilty to a misdemeanor assault charge, and H.S.'s family sued the school district for inhibiting free speech. But the suit was dismissed as "frivolous" and the family was ordered to reimburse the school's costs. A Circuit Court of Appeals upheld the ruling, "stating that a cheerleader serves as a 'mouthpiece’ for the school' and that H.S.'s refusal to cheer "constituted substantial interference with the work of the school because, as a cheerleader, [she] was at the basketball game for the purpose of cheering, a position she undertook voluntarily."

Now, her lawyer, Laurence Watts, is appealing the case to the Supreme Court over whether or not her refusal to cheer in fact constituted "substantial interference with the work of the school." The case also has implications for student free speech.

"All I wanted was for somebody to come forward and say, 'Yes, it happened,'" H.S. said. But it's clear that for school officials and the Court of Appeals, this was not their intention. Instead, they attempted to protect "the work of the school," which meant glossing over rape accusations, criminalizing victims, and fostering an educational environment where students are discouraged from addressing sexual assault and violence head on. 
   
In December, Legal Momentum reported on efforts by the U.S. Department of Justice to address shocking rates of sexual violence on college campuses across the U.S. In addition to direct measures by the Department, a bipartisan group of members of the U.S. House of Representatives introduced the Campus Sexual Violence Elimination Act (SaVE Act), a bill that would expand and clearly define the expectations of colleges and universities in their approach towards the prevention and response to sexual assault. This aggressive approach towards combating sexual violence must be enacted throughout all educational institutions, including secondary education.

The ongoing existence of sexual assault within educational institutions is a fundamental human rights abuse that must not be tolerated. Rather than victimizing survivors of sexual assault, educational institutions must work to fight against rape culture and create safe learning environments for all students. Ensuring that students, especially women, are able to live and study free of sexual harassment, sexual violence, and fear is a critical component of any successful educational institution.

• Learn more about Legal Momentum's work on behalf of women victims of violence.

Wal-Mart's Female Employees Deserve Their Day in Court

In 2001, several female Wal-Mart employees discovered that their male counterparts were paid more for comparable jobs and were promoted more often. The female employees decided to sue their employer collectively under Title VII, the federal law that prohibits employment discrimination based on sex – but the case has never been heard on its merits. For almost ten years Wal-Mart has insisted that its one million female employees do not constitute a class suffering from pay discrimination.

The federal district court judge who heard the case in 2004 ruled that they did. In April 2010, the Ninth Circuit Court of Appeals agreed.

Now Wal-Mart has filed a Petition for Certiorari with the Supreme Court, in hopes that the court will strike down the Ninth Circuit’s ruling. If the Supreme Court does not uphold the Ninth Circuit’s decision, each woman employee would have to file individual suits against the largest corporation and private employer in the United States.

Wal-Mart’s employment statistics clearly demonstrate that their women employees were paid less than their male counterparts in every region of the country for the same jobs. Legal Momentum agrees with The New York Times Editorial Board – the Supreme Court should uphold the Ninth Circuit’s ruling to allow Wal-Mart’s female employees to proceed as a class. It is clear that this case should be heard on its merits. All of Wal-Mart’s female employees deserve their day in court.

Learn more about Legal Momentums' work on Employment Rights for women.

Why Don’t More Women Sue Their Rapists?

In a recent article on Slate.com, Claire Bushey examines the practice, or lack thereof, of women who sue their rapists. She explains that ten years ago, the Supreme Court struck down a vital component of the Violence Against Women Act (VAWA) that allowed individuals to sue their rapists in federal court based on violation of civil rights claims. In 1994, Christy Brzonkala, a student at Virginia Tech, sued two football players for raping her. She sued both the players and the school under the VAWA’s civil rights policy. Yet, in United States v. Morrison, the Supreme Court ruled that “Congress had overstepped its constitutional authority by creating a federal remedy in the criminal-justice realm that usually falls to the states” and that Brzonkala’s case could only be heard by state, not federal courts.

This ruling has drastically affected the number of women suing their rapists, Bushey explains. While there has been a sharp rise in women filing lawsuits following a rape, the ruling makes it extremely difficult to obtain representation or compensation when suing a rapist. Even when the plaintiff wins (which is common), the rapists are often incapable of paying even the lawyer’s fees. In turn, few lawyers will take these types of cases. Instead, rape lawsuits generally go after third-party defendants, those who have money. These defendants are often employers, such as rent-a-cops or nursing homes, that don’t effectively screen their employees.

In contrast, the VAWA’s civil rights clause encouraged courts to award attorney’s fees to successful plantiffs, making it easier for women to obtain representation and thus sue their individual rapists. The clause also extended the statute of limitations to four years, enabling victims more time to deal with the devastating impacts of a rape and mount a case. But when the Supreme Court struck down these clauses, they did away with these measures and in turn made it increasingly difficult for women to sue their attackers.

Bushey argues that the ability to sue one’s rapist is particularly critical because of the failure of criminal courts to effectively prosecute rapists. She writes:

“Victims need the weapon of a lawsuit because the criminal courts don't always serve their interests. A 2004 study of sex crimes in Philadelphia and Kansas City, Mo., found that only half of the cases that resulted in an arrest were prosecuted. When prosecutors who doubt a victim's story are unwilling to press criminal charges, a civil suit allows the victim a different measure of justice. Juries determine guilt using a lower burden of proof; instead of deciding whether a defendant is guilty ‘beyond a reasonable doubt,’ a plaintiff need only demonstrate that ‘a preponderance of the evidence’ points to guilt, making it easier for victims to prevail. Victims don't send their rapists to prison by suing them, but the damages they can win are another form of punishment. Damages can also help replace a rape victim's lost income and pay for counseling. ‘The criminal case is about paying your debt to society,’ Dion says. ‘The civil case is about [perpetrators] paying their debt to the victim.’

Along with its practical importance for victims, VAWA promised a more abstract kind of benefit that was lost when the Supreme Court struck down the relevant portion of the law. Introducing the legislation in 1990, then-Sen. Joe Biden pointed out that more than 90 percent of sex crimes are committed against women. And yet, he argued, ‘we ignore the implication: a rape or sex assault should be deemed a civil rights crimes, just as 'hate beatings' aimed at blacks or Asians are widely recognized as violations of their civil rights.’ Even when states address rape victims' practical concerns by extending the time they have to sue or encouraging courts to award attorney's fees, they don't challenge the public to rethink rape as an attack on women because they are women—in other words, as a form of discrimination.”

Indeed, in order to successfully sue rapists, the essential components of the VAWA struck down by the Supreme Court must be reinstated. Rape is a civil rights crime and a discriminatory attack against women and must be understood as such. All legislation should accurately reflect this understanding if we are to successfully work to prevent violence against women.

For Claire Bushey's article on Slate.com, click here.

Despite Major Progress, Sexism Still Remains in the American Courts

Despite the major strides to combat gender discrimination in the American legal system, sexism still persists.  In 1980, Legal Momentum created The National Judicial Education Program to Promote Equality for Women and Men in the Courts (NJEP) to “educate judges and justice system professionals about the ways gender bias can be a factor across the spectrum of civil, criminal, family and juvenile law, and how to prevent it.”  Since then, attitudes and legal procedures have progressed dramatically. The NJEP’s work was a catalyst for over 40 state and federal-lvel task forces on gender equality in the legal system and amendments to the American Bar Association’s code of judicial conduct, says NJEP director and founder Lynn Schafran.

However, despite these significant gains in gender equity, sexism remains prevalent in the legal system, particularly in sexual assault cases.  Schafran provides multiple examples of this type of sexism, such as two U.S. states in which expert witnesses are unable to testify about a rape accuser's behavior.  In turn, judges and juries are forced to rely on often preconceived sexist notions in assessing a rape victim's actions.  Serious flaws in our legal system’s protection of abuse victims were again highlighted by the recent murder of Alissa Blanton by her stalker. After being denied a protection order until a second hearing, Blanton, along with countless others, are “left legally unprotected for 14 days while their alleged perpetrator ... is given not only a heads up about their action to end the relationship, but time ... to continue the behavior that led to the victim seeking the injunction in the first place,” says Carol Wick, the Chief Executive Officer of Harbor House, a domestic violence shelter in Florida.

And even the Supreme Court’s rulings on certain cases have reflected implicit sexism.  For example, in 2007 the Supreme Court ruled in Ledbetter v. Goodyear Tire & Rubber Co. that employers cannot be sued for gender or race pay discrimination if the alleged discrimination occurred over six months before legal action was taken. Indeed, “According to critics, the justices had not only thrown out a potentially far-reaching discrimination suit on what appeared to be procedural grounds, they also failed to recognize potentially legitimate reasons women may have for not immediately bringing gender discrimination to a court's attention.”

The NJEP, along with countless other women’s rights organizations, has worked tirelessly to promote full gender equality within the American legal system.  Yet despite many successful efforts to combat gender bias, aspects of sexism still remain.  We must continue to struggle to overcome gender inequity to ensure that all people receive equal justice in the American judicial system.

Legal Momentum Praises U.S. Supreme Court Decision in Crawford Case

Supreme Court Rules Against Employer Retaliation

January 26, 2009 -

Legal Momentum applauds the U.S. Supreme Court’s ruling today in Crawford v. Metropolitan Gov’t of Nashville and Davidson Co., Tenn. In a resounding victory for employees everywhere, the Court ruled that workers who provide information during an employer’s investigation of a sexual harassment or other discrimination complaint are protected from retaliation by federal law. Federal law makes it just as illegal for an employer to retaliate against someone who complains of discrimination as it is for an employer to discriminate in the first place. 

In its 7-2 decision in favor of Vicky Crawford -- who was fired after she corroborated a co-worker’s sexual harassment complaint against her boss by disclosing that the same supervisor harassed her – the Court rejected the argument that the law’s ban on retaliation did not apply to Ms. Crawford because she did not file her own harassment complaint.The law’s protection is much broader than that, said the Court, and protects employees who oppose discrimination in other ways – such as by honestly answering an employer’s questions, like Ms. Crawford did.   

The anti-discrimination laws succeed or fail in large part based on employees’ willingness to speak up about misconduct. “The Court did a service to all employees today by recognizing that Vicky Crawford and people like her need to feel confident that if they disclose what they know, they won’t be punished for it,” says Irasema Garza, President of Legal Momentum. “But the Court’s ruling also benefits employers, because when workers feel safe voicing concerns about discrimination and harassment, employers can fix those problems before they become lawsuits.”