High Court Ruling Favors Ousted Cheerleader : Law: But state justices won’t publish their finding, meaning it will affect only Irvine schools. Other districts may maintain dual eligibility standards for activities.

A ruling by the state Supreme Court Thursday involving a former Irvine cheerleader will allow most public schools to continue setting higher grade standards for cheerleaders than athletes.

The Irvine Unified School District, however, will probably have to change its rules.

The case involved the Irvine district’s dropping a cheerleader from the pep squad after she failed a class, a requirement that didn’t apply to athletes. The appellate court found in the teen-ager’s favor, a ruling that would have prohibited public schools statewide from setting a double standard.

The state Supreme Court on Thursday voted 4 to 3 to deny review of that case, meaning that the appellate court’s order stands for Irvine.

But the Supreme Court justices unanimously withdrew the appellate ruling as a precedent that would have been binding on trial courts statewide. Following its usual practice, the court gave no explanation for its decision, an action that leaves the legal issue unsettled.

The former cheerleader, Melissa Fontes, and her attorney said they were dismayed at the court’s decision to keep the ruling off the books.

“It doesn’t make sense to me,” said Fontes, now 21 and a college student in Oregon.

Fontes was barred as a cheerleader at Woodbridge High School in Irvine several years ago after she failed chemistry and her grade average for the semester fell below 2.5.

“If they’re saying, ‘Yes, what happened in this Irvine district is wrong,’ why wouldn’t they apply that to all districts? It seems very arbitrary. Either it shouldn’t happen anywhere or they should reverse the (appellate court) decision.”

Fontes’ attorney, Bonnie Lawley of Hacienda Heights, said the court’s action was a disservice to other young people throughout the state who may find themselves in Fontes’ position and be forced to sue to protect their rights.

“I think it’s extremely unfortunate, because the only thing the publication of the decision does is to force school districts to comply with the equal protection clause of our Constitution,” she said.

An attorney for the Irvine district, Mark Bresee, said the high court’s decision to let the appellate court’s ruling stand was a disappointment. The action cannot, however, “be construed as supporting” the appellate court, he said.

“In my opinion . . . the fact that they took it off the books either means they were neutral on it or they disagreed with it,” he said.

Bresee said the decision was a “clear victory” for California school districts as a whole. The California School Boards Assn. had submitted letters urging the court to depublish the decision because it was wrong, he said.

The Irvine school board has not determined what effect the court’s action will have on its policies, Bresee said.

“It’s a question that hasn’t been addressed yet by the district, because (the case) was still making its way through the courts.”

But one school board member, Margie Wakeham, said Thursday night that the district apparently will have to adopt the same standards for cheerleaders as athletes.

Wakeham said she thought the Supreme Court decided not to hear the case because justices thought it was “ridiculous.”

“I thought it was ridiculous, too. At least they depublished it.” Currently, the district’s policy is to require cheerleaders to maintain a 2.5 average each semester, on a scale of 4.0, and to disqualify them for failing an class. Athletes are judged by minimum standards of the California Interscholastic Federation, requiring a grade average of 2.0 for their high school career. They could fail one class in a semester and remain eligible.

Many other school districts in the state have differential grade requirements, lawyers for the Irvine district said.

After unsuccessfully appealing to the school and the district board, Fontes sued. The district defended its policy, saying cheerleaders, unlike athletes, performed year-round and served as ambassadors of goodwill for the district, and therefore could be held to higher standards.

Robert Gardner, a retired appeals court justice assigned to Orange County Superior Court, ruled in the district’s favor. But he was overruled in May by the 4th District Court of Appeal, which found no rational justification for the policy.

“Interscholastic sports and cheerleading are both non-academic extracurricular activities,” said Presiding Justice David Sills in the 3-0 ruling. “There is nothing about cheerleading that makes it qualitatively any more or less scholarly than football, baseball or some other sport.”

It’s not a case of sex discrimination, Sills wrote--boys and girls take part in both activities--but of arbitrary discrimination between athletes and cheerleaders. He said constitutional standards of equal protection require a single eligibility standard.

“Cheerleaders are not mere passive supporters of football and basketball teams, but, like athletes in spectator sports, (are) entertainers in their own right,” Sills said.

He said athletes represent their school no less than cheerleaders, and spend more out-of-class time on their activity, counting practice time. The school district can decide to lower one standard or raise the other, and might be able to justify higher eligibility requirements for extracurricular activities with a greater academic connection, Sills said.

In seeking state Supreme Court review, the district’s lawyers said courts should leave such matters to schools and their elected governing boards.

“The Court of Appeal manufactured a distinction between ‘academic’ and ‘non-academic’ extracurricular activities” and failed to define it, said district lawyer Pamela Depsey in court papers. She called the ruling an “impermissible intrusion into functions reserved to local governmental agencies.”

The Associated Press contributed to this report.