Court: O.C. Cheerleader a Victim of Bias

A state appeals court ruled Friday that an Irvine high school student was wrongly excluded from cheerleading for failing a class, and that cheerleaders cannot be held to a higher academic standard than athletes.

“While we sympathize with the attempt to impose high academic standards on cheerleaders, the distinction between cheerleading and athletics cannot pass,” wrote Presiding Justice David Sills for the unanimous 4th District Court of Appeal.

The court’s decision could have far-reaching implications because it was certified for publication, meaning that it can be cited as a precedent in subsequent lawsuits against other school districts in the state. Many districts in Orange County and elsewhere set higher grade standards for cheerleaders than for athletes.

The court awarded legal costs to Melissa Fontes, a former cheerleaders captain at Woodbridge High School and now a college student in Oregon.

The Irvine Unified School District’s board of trustees will meet Tuesday night to decide if they should petition the state Supreme Court to review the appellate court’s ruling. Less than 10% of these petitions are granted.

At least one board member said Friday night that she will vote to appeal to the Supreme Court.

“It’s the principle of the thing,” said Margie Wakeham, a school board member for nine years. “I’m enormously disappointed because it’s not a sex-discrimination issue, but it’s an issue of two different activities.”

Wakeham’s son, Dean, was an offensive tackle and president of the student body at Irvine High before he accepted a football scholarship to Navy.

“Cheerleaders are semi-ambassadors of the schools, and that is why they are held to a higher standard,” she said.

Another school board member, Michael B. Regele, said he was “a little surprised” by the ruling.

“The California Interscholastic Federation sets the policy for athletes, and we set the policy for cheerleaders and other activities,” he said. “That made a lot of sense to us then, and it make a lot of sense now.”

An appeal to the state Supreme Court “is certainly an option,” Regele said.

Jack Parham, a lawyer for the Irvine school district, acknowledged that if left intact, the decision means that school districts in California cannot have disparate standards for non-academic programs.

Parham, who was a football coach at University High in Irvine before becoming a lawyer, said he was disappointed at the justices’ decision, calling it “judicial activism at its worst.”

“Here you have judges who are substituting their opinion for the opinion of the school board,” Parham said. “It’s a witty, well-written opinion, but they misunderstand their role. They should leave it to the politicians to set these standards. That’s why we elected them.”

Parham said the district set higher academic requirements for cheerleaders because they are “leaders” in their schools.

“Pep squad members are leaders who are held to a higher academic standard so people will look up to them,” Parham said. “The district believes that people who are on front stage are people who are performing well academically.”

Fontes could not be reached for comment Friday.

She was excluded from the cheerleader squad in the fall of 1990, after failing a chemistry course. Although her overall grade-point average was 2.9 out of a possible 4.0, the Irvine Unified School District maintain a “no F” requirement for cheerleaders.

Athletes were required to maintain a 2.0 average, and pass at least four courses in the previous quarter. Non-academic activities, such as cheerleading and student government, required a 2.5 average and no failures.

In her suit against the school district, Fontes challenged what she said were unequal standards, but did not ask for any monetary damages.

After a two-day trial, which was heard without a jury, Superior Court Judge Robert Gardner dismissed Fontes’ challenge in a biting decision.

“This is a sorry vehicle to advance a worthy cause,” Gardner wrote. “Anyone can get a D, but it takes an all-out application of irresponsibility to get an F,” he wrote.

But the appeals court found Fontes’ point had merit.

“Interscholastic sports and cheerleading are both non-academic extracurricular activities,” the court said. “There is nothing about cheerleading that makes it qualitatively any more or less scholarly than football, baseball or some other sport.”

The justices emphasized that they had no intention of making school policy.

Their ruling, wrote Sills, “does not mean the school board must necessarily lower the standards for the pep squad. They could raise them for the athletes. That choice is left to the district.”

“We are not attempting to micromanage school activities,” wrote Justice Sheila Prell Sonenshine, in a concurring opinion.

Both Sills and Sonenshine strongly defended cheerleading.

“Cheerleading is not so much less intellectually challenging than football or basketball that the latter two can be said to be ‘academic’ while cheerleading is not,” Sonenshine said. “There is an obvious rational basis for supporting academic eligibility requirements for sports, if only to keep a sense of proportion between the basic aims of education and the collateral benefits of interscholastic athletics. The tail should not wag the dog.”