The History of Cheerleading
In the decades following the first intercollegiate football game, the 1869 contest between Princeton and Rutgers University, all-male pep clubs were formed to support the emerging sport at colleges throughout the Northeast. In 1884, a graduate of Princeton, Thomas Peebles, took his alma mater’s cheers to the University of Minnesota where a squad of male “Cheer Leaders” led the crowd at football games in chants to support the Gophers. In 1898, one of those squad members, Johnny Campbell, used a megaphone to incite fans to rally the team to victory with what is acknowledged as the first scripted cheer, “Rah, Rah, Rah! Ski-U-Mah! Hoo-Rah! Hoo-Rah! Varsity! Varsity! Minn-e-so-tah!”
Although women began to join collegiate cheer squads in the 1920s, it wasn’t until the ‘40s during World War II when most college-aged men were away serving in the military that the gender makeup of university cheer squads shifted to primarily female. In the years immediately following WWII, cheer began to filter down to the high school and middle school levels and staples of the activity such as pom pons, spirit sticks, flashcards, flips, pyramids and stunt runs began to be widely used, with female participation numbers at the interscholastic level increasing significantly during the last half of the 20th century.*
According to a 2009 study conducted by the NFHS, 394,694 high school girls participated in “sideline” cheer at the 18,922 NFHS-member schools offering the activity, and according to the NFHS 2014-15 Annual High School Sports Participation Survey, 125,763 girls participated in the sport of “competitive” cheer at the 5,358 schools offering such programs.
The growth over the years in cheerleading participation numbers has been accompanied by a parallel growth in litigation involving a variety of categories of sports law issues, including liability for injuries to cheerleaders, the constitutional rights of cheerleaders when they are sanctioned for alleged violations of program codes of conduct, the criteria for counting cheerleaders as athletes for purposes of Title IX compliance, liability for hazing in cheer programs, the accommodations legally mandated for cheerleaders with disabilities, and liability for sexual harassment of cheerleaders. Only through an understanding of the legal standards governing such issues can school administrators and athletics personnel take the proactive steps necessary to fulfill their obligations to the hundreds of thousands of students participating in the activity of sideline cheer and the sport of competitive cheer.
Liability for Cheerleader Injuries
In an extensive series of rulings over the years, courts have consistently held that the same duties imposed on schools and athletics programs with regard to safeguarding the health and well-being of student-athletes are also owed to cheerleaders, including the duties of planning, supervision, selection and training of coaches, proper technique instruction, warnings regarding the risks of participation, safe playing environment, protective athletic equipment, emergency medical response plans, immediate medical assistance, proper return to action protocols, and safe transportation. Fulfilling these duties to cheerleaders is an exceptionally important safety mandate for schools – studies published by the National Center for Catastrophic Sports Injury Research (April 2015) and the Journal of Pediatrics (October 2013) indicate that cheerleading is the second most dangerous sport in terms of the risk of catastrophic injuries, with only football ranking higher.
In Verhel v. Independent School District No. 709 (1984), the Minnesota Supreme Court upheld a $214,200 jury award to a cheerleader severely injured in a 5 a.m. auto accident in a van driven by a fellow cheerleader while the squad was “bannering” the homes of football players, concluding that school personnel had failed to exercise reasonable care to satisfy the duties of planning, supervision, training the cheer sponsor, and providing safe transportation.
In Rollins v. School District No. 1 and Fergus High School (2000), the Montana Supreme Court denied relief to a cheerleader who sustained a serious back injury in a fall from a pyramid while attending an independent summer cheer camp, but made clear in its ruling that schools and athletics personnel are liable for failure to supervise, provide proper technique instruction, communicate warnings, and to ensure proper immediate medical response at summer camps attended by cheerleaders at the direction of or under the sponsorship of high schools.
In Schultz v. Foster-Glocester Regional School District (2000), the Rhode Island Supreme Court reversed a lower court summary judgment for the defendants and held that the school and its cheer sponsor had potential liability for failure to supervise, provide proper technique instruction, provide a safe playing environment, and provide reasonable medical assistance to a cheerleader severely injured at practice when she fell onto a hardwood floor during a botched “basket toss” stunt. The district settled the case after it was remanded to the lower court for a full trial.
In Sharon v. City of Newton (2002), the Supreme Judicial Court of Massachusetts upheld a lower court grant of summary judgment to the defendant city, school, and athletics personnel, concluding that the waiver of liability signed by a cheerleader injured in a fall from a pyramid was valid and enforceable because it was sport-specific, included a thorough set of warnings regarding all of the risks of participating in cheer, and had been thoroughly explained to the cheerleader and her parents before it was signed.
In Noffke v. Bakke (2008), the Wisconsin Supreme Court ruled against a cheerleader who sued a fellow squad member whose alleged negligence as a spotter caused the plaintiff to suffer serious injuries in a fall onto a hardwood floor. The court held that the “contact sports exception,” a legal standard shielding a participant in a contact sport from liability for ordinary negligence causing injury to another participant, applies to cheerleading – essentially a ruling that because of the high level of danger involved in many of its stunts, cheerleading is to be considered the equivalent of a contact sport.
In Lail v. Cleveland County Board of Education (2007), the North Carolina Court of Appeals declined to apply the state’s governmental immunity law, a type of statute enacted to shield public entities and public employees against lawsuits, to limit the liability of a school and cheerleading coach for a fractured skull sustained by a cheerleader during an inadequately supervised practice. The decision is consistent with a nationwide trend in rulings in recent years eroding the application of statutory immunity to limit the liability of coaches and athletics personnel for injuries to students in their charge.
And in a suit filed in May 2015 and yet to be resolved, Schoerke v. New Trier Township School District, a cheerleader who sustained a concussion in a fall during a “flying stunt” is suing her Illinois district, school and three athletics personnel for allegedly ignoring recommended return-to-play protocols for head injuries, illustrating the importance of complying with both state concussion management laws and state association policies, along with providing education for all athletics personnel regarding the mandates of the applicable law and policy
Title IX & Cheerleading
Regardless of the designation of a cheer squad as an “activity” or as a “sport” by its school, district, state association or national governing body, its classification for Title IX purposes depends entirely on whether the squad satisfies the criteria set forth in the September 17, 2008 U.S. Office for Civil Rights Dear Colleague Letter titled Athletic Activities Counted for Title IX Compliance, a policy guidance setting forth an extensive set of factors to be used in evaluating whether a school activity constitutes a sport.
To date, the OCR has not ruled that any cheer program, college or high school, sideline or competitive, sufficiently satisfies the criteria in the DCL for cheerleaders to be counted for purposes of the “substantial proportionality” component of Title IX’s “three-prong test,” a methodology for evaluating whether a school is providing adequate sports participation opportunities for the girls enrolled at the institution. In Biediger v. Quinnipiac University (2012), the landmark Title IX case in which a federal court held that even competitive cheer does not yet satisfy the criteria from the 2008 OCR DCL, the judge wrote, “in reaching my conclusion, I do not mean to belittle competitive cheer as an athletic endeavor. Competitive cheerleading is a difficult, physical task that requires strength, agility, and grace. I have little doubt that at some point in the near future … competitive cheer will be acknowledged as a bona fide sporting activity by academic institutions, the public, and the law.”
The key for schools or state associations wishing to count competitive cheer teams as a sport is to continue to shape cheer programs to better comply with all of the factors set forth in the 2008 DCL and to petition the OCR to recognize programs as in compliance. Although it appears unlikely that the OCR or federal courts will ever find that a sideline cheer squad satisfies the 2008 DCL criteria, the acknowledgment by the OCR of even one high school competitive cheer squad as fulfilling the criteria and therefore constituting a sport for Title IX purposes would provide a blueprint for compliance by other schools.
Constitutional Rights of Cheerleaders
In Kowalski v. Berkeley County Schools (2011), a cheerleader who was suspended from school and the cheer squad for lewd and vulgar postings on social media used to bully another member of her team filed a free speech challenge to the school’s sanctions against her, arguing that she made the postings at home and that the school’s authority to limit student speech did not extend off school property. Although acknowledging that off-campus social media postings are beyond the reach of school authority unless they create a substantial disruption on campus, a U.S. Court of Appeals ruled in favor of the school by holding that the extreme level of bullying in the cheerleader’s posts were presumptively a substantial disruption of the work and environment of the school. Schools typically lose student free speech challenges when the speech occurs off-campus unless the institution can document that the off-campus speech resulted in a substantial disruption back on campus and the trend in judicial rulings seems to be that bullying or threats presumptively constitute such a substantial disruption.
In Matthews v. Kountze ISD (2014), a Texas Court of Appeals upheld a lower court ruling that banners bearing Bible verses displayed by cheerleaders at Kountze High School football games did not constitute a school-sponsored message and, as such, were not a violation of the First Amendment’s Establishment Clause, the constitutional provision creating the so-called “wall of separation” between church and state. The Texas Supreme Court has agreed to hear the appeal of the ruling and oral arguments will take place in the fall of 2015.
In James v. Tallassee High School (1995), a U.S. District Court in Alabama ruled against a cheerleader dissatisfied with being chosen captain of her squad during football season, but not for basketball season, and who had sued claiming that her constitutional rights had been infringed and that she had been denied adequate due process by the cheer coach and school. The court held that, consistent with a long line of case precedents, participation in school extracurricular activities and sports is a privilege, not a constitutionally-protected right.
Hazing in Cheer Programs
The importance of schools developing, implementing and consistently enforcing anti-hazing policies was illustrated in Harris County v. Garner, et al (2008), a criminal case, in which seven high school cheerleaders were charged as adults with violating the Texas hazing law for an initiation ritual in which they pushed new members of their cheer squad, bound and blindfolded, into a swimming pool. The seven received a year of pre-trial diversion, with conditions similar to probation and following successful completion of which their criminal records were expunged.
In Bagai v. San Marcos USD (2006), a settlement was reached in a civil claim in a case involving freshmen cheerleaders who were hazed during a summer cheer camp held on a college campus through a variety of humiliation rituals, including being walked across campus wearing dog collars and leashes by the varsity members of the team.
Sexual Harassment & Cheerleading
In Doe v. Forest Hills School District (2015), a $600,000 settlement was reached in a civil lawsuit involving a cheerleader who was sexually assaulted on school premises by a star basketball player. The complaint asserted that after school administrators were notified of the assault, they discouraged the student and her parents from reporting the incident to police and that the school’s delayed investigation of the situation was biased towards keeping its star player on the court and that in the interim, the player committed a second sexual assault against another girl at the school. In a preliminary ruling in the case, a Michigan federal judge found that the district had violated Title IX by failing to train its personnel on how to appropriately respond to a report of sexual assault and by failing to provide training for the district’s federally-mandated Title IX Coordinator regarding how to handle sexual assault allegations and investigations.
The obligations of schools to address sexual violence and other forms of sex discrimination is set forth in detail in an April 29, 2014 Policy Guidance issued by the U.S. Department of Education’s Office for Civil Rights titled Questions and Answers on Title IX and Sexual Violence, available here.
* The information regarding the history of cheer is from Doris Valliant’s 2002 book The History of Cheerleading, published by Mason Crest (ISBN 978-1590845349).
Lee Green is an attorney and a professor at Baker University in Baldwin City, Kansas, where he teaches courses in sports law, business law and constitutional law. He is a member of the High School Today Publications Committee. He may be contacted at Lee.Green@BakerU.Edu.