Does losing mean the claim was frivolous?

There’s a difference between a frivolous lawsuit and one that you don’t win. This sure seems like latter. [The Independent].

The United States Supreme Court on Monday declined to hear a review of the case brought by the woman, who is known only as HS. Lower courts had ruled that she was speaking for the school, rather than for herself, when serving on a cheerleading squad – meaning that she had no right to stay silent when coaches told her to applaud.

She was 16 when she said she had been raped at a house party attended by dozens of fellow students from Silsbee High School, in south-east Texas. One of her alleged assailants, a student athlete called Rakheem Bolton, was arrested, with two other young men.

Bolton had pleaded guilty to a misdemeanor assault charge in a deal that allowed him to continue playing basketball for the team in the “sports-craved” Texas town of Silsbee. The girl was kicked off the cheerleading team for refusing to chant her assailant’s name during a game. She sued, arguing the school violated her First Amendment right to free expression.

So she lost. But then the court hit her with the ultimate insult – she had to pay the school district’s legal fees, which were $45,000 for filing a frivolous lawsuit.

The appeals court upheld the decisions of the lower court and the U.S. Supreme Court decided not to hear the First Amendment claim. Which, of course, means the decision and the sanctions survive.

But the question is simple: is there a difference between a frivolous lawsuit and one that you just lose? Forcing the girl to repay the school district’s legal bills seems far more offensive than the lawsuit itself.

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