The Court's Order Is a Victory for the Kountze Cheerleaders: A Response to Hemant Mehta
There is no question that this was a victory for our clients, the Kountze Cheerleaders.
First, the Order prevents the school district from censoring the speech contained on their religious banners for the rest of the season, until the trial scheduled for June of next year.
Second, the court determined that allowing the school to censor the banners would cause the Cheerleaders "probable, imminent, and irreparable injury" because the school's "unlawful policy prohibiting religious expression" will "prohibit [the Cheerleaders] from exercising their constitutional and statutory rights at all football games and other sporting events." Importantly, the judge recognized that the school's conduct was unlawful and violated the cheerleaders' rights.
To accuse Liberty Institute of making false statements and/or exaggerating regarding the current status of this case is to ignore the effect of the injunction and the plain wording of the court's order.
Unfortunately, Mr. Mehta's misguided statements do not end there.
He implies that students who wear school uniforms no longer have free speech rights. It is axiomatic that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969). Students have constitutional rights, even while wearing school uniforms and standing on a football field. If a football player prayed with his teammates before an important play, or "Tebowed" on the field, no one would argue that this is impermissible. In the same manner, the cheerleaders' speech is protected, even though it occurs while on the football field and while the cheerleaders are wearing uniforms. (Although in this case, the cheerleaders' uniforms are paid for with private funds and do not belong to the school.)
The cheerleaders' speech is protected because it is private student speech and not government speech. The Supreme Court stated that "there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." Although coaches or other school officials cannot advocate for or against religion, students can.
It is clear from both state law and the school's own policies that when students speak at school-sponsored events, their speech is their own and is not attributable to the school district. Furthermore, the cheerleaders alone decide what messages to place on their banners. The supplies to create the banners, like the uniforms, are paid for with private funds. The speech is therefore private, fully protected speech.
When confronted with speech with which one disagrees, one can either: 1) try to have the speech censored; or 2) contribute to the free marketplace of ideas with more speech. The first option, which Mr. Mehta advocates, runs afoul of the First Amendment. The second is the approach of a free society; America has chosen this approach and made it the highest law of the land.
The cheerleaders in Kountze, Texas, took a courageous stand against their school district—and won. Although the case is not over yet, they won the right to religious expression on their banners for the remainder of the school year and will likely prevail at trial. This is a victory not only for the cheerleaders, but for free speech and the Constitution.
Jeffrey Mateer is the general counsel of Liberty Institute, a national non-profit law firm that works to protect religious liberty.
Erin Leu is an attorney at Liberty Institute who represents the Kountze Cheerleaders in Matthews v. Kountze I.S.D.