How Cheerleading Made It to the Supreme Court

The U.S. Supreme Court is in session! The nation’s highest court is preparing to weigh in on a number of important issues facing the nation.

The justices, or judges, of the Supreme Court have the final say on whether laws are constitutional. Supreme Court decisions become the law of the land. The justices serve for life, and their decisions affect all Americans—including teens—on an everyday basis. 

The Court usually has nine ­justices, but it has been operating with just eight for nearly a year. The ninth seat has been empty since Justice Antonin Scalia died last February. The Republican-controlled Senate refused to consider any nominee until after the 2016 presidential election. President Donald Trump is expected to move quickly to fill the Court’s vacancy with a conservative justice.

“Trump has pledged to nominate someone [similar to] Justice Scalia, so if that person gets confirmed [by the Senate], we won’t see a huge change in the Court,” according to Jeffrey Fisher, a law professor at Stanford University in California. 

Trump’s appointment will likely restore the Court to the same balance it had before Sca­lia’s death: four conservative justices, four liberal justices, and one swing vote. 

The Supreme Court is asked to hear approximately 8,000 cases each term—but accepts only about 80. Here’s a look at four key cases on the schedule this term.

Varsity Brands, the leading seller of cheerleader uniforms, has copyrights on stripes, zigzags, and other designs it uses. The Tennessee-based company sued Star Athletica after its rival started to sell uniforms with similar designs.

Copyright law is complicated, but in general it hasn’t applied to most clothing. A copyright protects the creator of something artistic (such as a piece of music, a story, or a song) against someone else’s profiting from that work. 

Courts have usually found that clothing’s primary use—to cover our bodies—outweighs its creative aspects. That’s why copyright protection for clothing designs is rarely given. 

Varsity Brands is hoping to convince the justices that its designs are distinct enough to warrant copyright protection. But Star Athletica says those stripes and zigzags are generic and shouldn’t be copyrighted. 

How the Court interprets what’s eligible for copyright protection could have a big impact on the fashion industry. Knockoffs of high-end fashion by mass-market clothing companies are big business. When a celebrity wears a designer gown to an awards ceremony, for example, a cheaper version is often available in stores within weeks. A ruling that will make it easier to copyright clothing would hurt the knockoff industry, legal experts say. 

“If suddenly in this case we say that dresses are copyrightable, . . . the price of women’s clothes [will increase],” Justice Stephen G. Breyer said during oral arguments.

Gavin Grimm is a transgender boy in Gloucester, Virginia. That means he was born female but identifies as a male. When he started 10th grade at Gloucester High School in the fall of 2014, he began referring to himself publicly as a boy.

By then, Gavin had already cut his hair short and received permission from the school principal to begin using the boys’ bathroom.

But when the community found out, a massive controversy erupted. The Gloucester County School Board voted to prevent Gavin from using the boys’ bathroom. So Gavin filed a lawsuit, saying the policy ­violated his civil rights. The case has now made its way to the Supreme Court. 

Gavin’s lawyers argue that the district’s bathroom policy is unconstitutional under the 14th Amendment, which guarantees all Americans “equal protection of the laws.” 

Gavin’s case comes at a time of intense debate over transgender rights. Last year, North Carolina passed a law requiring transgender people to use bathrooms in government buildings that correspond with the gender on their birth certificates. The law has sparked protests, boycotts, and lawsuits. So far, efforts to repeal it have failed.

“The only thing I ever asked for was the right to be treated like everyone else,” says Gavin, who is now 17 and a senior in high school. 

But to Gary McCaleb, a lawyer with the Alliance Defending Freedom, a group supporting the school board, the case is about protecting the safety of all students. 

“Federal law should not be twisted to require that a male be given access to the girls’ facilities, or a female to the boys’ facilities,” he says. 

There’s a chance the justices won’t hear Gavin’s case. Part of the lawsuit involves whether Gloucester’s bathroom policy constitutes gender discrimination. That is prohibited by a federal law known as Title IX. The Obama administration said the bathroom policy is discriminatory, and that the school district is in ­violation of the law. 

But the Trump administration may well have a different view, and experts say that could prompt the Court to dismiss the case. No matter what happens, the Court seems likely to rule on a transgender rights case at some point.

In 2011, Simon Tam applied to trademark the name of a band he started in Portland, Oregon: The Slants. (A trademark prevents anyone else from profiting from the use of a name­ without the owner’s permission. The term Big Mac, for example, is trademarked.) The U.S. Patent and Trademark Office refused, saying that the name is a derogatory term for Asian-Americans. Under federal law, the trademark office may refuse to register trademarks it considers “disparaging,” or disrespectful.

Tam, who is Asian-American, sued. He says that he has a First Amendment right to name his band and get trademark protection for it.

“The question here,” says Lee Rowland of the American Civil Liberties Union, “is can the government, by offering an immense benefit like trademark protection—the possibility of being the next Kleenex or Coca-Cola—make [it] a condition of that benefit that you can’t be offensive?”   

This case has huge implications for a higher-profile case. The National Football League’s Washington Redskins are challenging the trademark office’s 2014 decision to revoke its trademark on similar grounds—that the team’s name is offensive to Native Americans. That case is pending before a court below the Supreme Court.

The team has argued that the name is meant to honor Native Americans. But many people say the name is disrespectful and have been urging the team to change it for decades.

How strictly governments should interpret the concept of separation of church and state is what this case is about. (The First Amendment to the Constitution prohibits the establishment of a national religion. This is often referred to as the separation of church and state—the idea that the government should not support a particular religion.)

In 2013, a church in Missouri wanted to resurface its playground. It applied for state money under a program that helps make children’s play areas safer. 

State officials denied the funding request. They cited the Missouri constitution, which prohibits spending public money “in aid of any church.” 

The church sued. It argued that the state constitution violates the 14th Amendment’s equal protection principles and the First Amendment’s guarantee of free exercise of religion. 

This case could help clarify what the separation of church and state really means, says David Strauss, a law professor at the ­University of Chicago in Illinois.

“There’s this notorious problem with the church-state relationship,” he explains. “The government can’t give too much help to [churches], but also can’t be hostile to them. Drawing that line is very difficult.”