Texas Legal Expert Says Kountze School District Cheerleaders Are Out of Line

Jim Walsh is the managing editor of the Texas School Administrators’ Legal Digest and co-author of The Educator’s Guide to Texas School Law.

In other words, the guy knows what he’s talking about regarding the Kountze High School controversy where cheerleaders are holding up banners with Bible verses on them. Last we heard, a judge had temporarily allowed them to hoist the banners without punishment. The case will be heard again next June.

What does Walsh think about the case?

… If the banner represents a free speech zone for individual student expression, then I suppose that the student who is chosen for a particular game can express whatever view, on whatever subject he or she chooses. Here are some possibilities:




The words expressed on the official Friday night banner are written by cheerleaders acting as representatives of the school district. The football players, also as representatives of the school district, give support to the words by charging onto the field through the banner. It shouldn’t take too long to see that this is not the same as the expression of a single student holding up a sign or painting a scripture verse on his or her face.

When the legal issue was brought to the attention of the superintendent, he did the right thing. He did not ignore the concern, as some would have done, confident that the community would be supportive. He did not take an opinion poll. He did not put it to a vote of the school board — constitutional issues are not decided by majority vote.

I’ve said this before, but if the banners cited the Koran instead of the Bible, the Kountze community would have put a stop to them a long time ago. They’re letting it slide only because the Bible verses go hand-in-hand with their personal beliefs. The courts haven’t ruled in their favor — they just haven’t ruled against them yet — and I’m still confident they’ll follow the law in the summer.

(Thanks to Brian for the link!)

About Hemant Mehta

Hemant Mehta is the editor of Friendly Atheist, appears on the Atheist Voice channel on YouTube, and co-hosts the uniquely-named Friendly Atheist Podcast. You can read much more about him here.

  • TnkAgn

    Even the Roberts Court wouldn’t allow this, if Santa Fe School District v. Doe (2000) is any guide.

  • http://twitter.com/gman747 gary

    expert schemexpert 

  • Stonyground

    The US is the only developed country where this kind of thing goes on. From here in the UK it looks totally bizarre. As far back as the nineteen-seventies, when I went to school, school-kids were embarrassed to be associated with religion. It is still the law here that the school day has to begin with an assembly that resembles a church service. It was supposed to be every day, but in the 1970s it happened about twice a week. It is difficult to describe the utter contempt with which the schoolkids regarded these proceedings. Maybe US Atheists and Humanists need to find a way to get religious tripe made compulsory in schools.It may be that the reason that these kids are so keen to do this is because it is against the rules, make it compulsory and they will drop it like a hot stone.

    Sorry to be OT but I love your ambigram. Did you have it before Dan Brown made them popular?

  • Gus Snarp

    This headline is misleading. I realize this case gets a little complicated, but he’s not saying the school district is out of line, he’s saying he agrees with the school district. You and I agree with the school district, too. The cheerleaders are fighting to keep the banners, the school district ordered them to stop, the correct decision. The court has granted a temporary injunction against the school district allowing the cheerleaders to continue.

    We should get this right and we have to be pedantic about it because if we’re not, an already complicated issue becomes more complicated. The school district is on our side, the source you quoted is on the same side.

  • Justin Miyundees

    The wheels of justice grind slow but they grind exceedingly fine as well.  

    It is irritating that it takes people so long to admit when they’re wrong.  Meantime, all praise his noodly appendage.

  • Annie

     Good point, Gus.  The cheerleaders are out of line.  The judge is out of line.  But the school district seems to be the only level-headed player in this scenario.

  • http://friendlyatheist.com Richard Wade

    Last we heard, a judge had temporarily allowed them to hoist the banners without punishment. The case will be heard again next June.

    So the cheerleaders get to continue to proselytize representing a public school with impunity for another eight months?

  • Marella

    This is so offensive to the other team. God is on OUR side you heathens! Disgraceful.

  • Amanda Scott

    I am glad that there is at least one Texas lawyer that understands the law in this case, because the Texas Attorney General Greg Abott doesn’t.

    The Kountze Independent School District reserves the right to limit the cheerleaders’ banners.

    In Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1980), the Supreme Court held that a school district can restrict students’ speech in “school-sponsored expressive activities” for “legitimate pedagogical concerns”: “[W]e conclude that the standard articulated . . . for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. We hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Hazelwood, 484 U.S. at 273.  In Morgan v. Swanson, 659 F. 3d 359 (5th Cir. 2011), the Fifth Circuit defined a “school-sponsored expressive activit[y]” under Hazelwood: “The critical inquiry in deciding whether speech is “school-sponsored” under Hazelwood is whether it could reasonably be understood to bear the school’s imprimatur, which is synonymous with “sanction,” or “approval.” Relevant considerations include (1) where and when the speech occurred; (2) to whom the speech was directed and whether recipients were a “captive audience”; (3) whether the speech occurred during an event or activity organized by the school, conducted pursuant to official guidelines, or supervised by school officials; and (4) whether the activities where the speech occurred were designed to impart some knowledge or skills to the students.” Morgan, 659 F. 3d at 376.

    In Curry ex rel Curry v. Hensiner, 513 F. 3d 570 (6th Cir. 2008), the Sixth Circuit held that students’ religious speech qualified as a “legitimate pedagogical concern” under Hazelwood:
    “[H]azelwood does not require us to balance the gravity of the school’s educational purpose against [the] First Amendment right to free speech, only that the educational purpose behind the speech suppression be valid. Here, the principal decided that allowing [the speech] would not, be appropriate because it was religious, and therefore could offend other [students] and their parents. The school’s desire to avoid having its curricular event offend other [students] or their parents, and to avoid subjecting [students] to an unsolicited religious promotional message that might conflict with what they are taught at home qualifies as a valid educational purpose. . . .” Curry, 513 F. 3d at 579.


  • http://www.flickr.com/photos/chidy/ chicago dyke, Blonde

    we waste our time trying to convince the amurkin taliban of anything. all they want is the theocracy of their choosing. logic, law, etc., fall upon deaf ears, with them. fight them the only way you can: brutally, without apology, and using the law that is still honored in this country to full effect. 

  • Verimius

    There’s another relevant case, http://bit.ly/QOk0yp

    In the case of a cheerleader refusing to cheer for a player who allegedly raped her, the US Fifth Circuit Court of Appeals decided that as a cheerleader she was speaking for the school and not for herself.

  • Renshia

    “I’m still confident they’ll follow the law in the summer.”

    I don’t know, Those guys? South of the boarder? Fuck, they’re crazy. Anything could happen.

  • ChinaSea

    Wow, I never noticed the ambigram. That’s really neat.

  • DougI

    There are already at least two Supreme Court decisions which say the school can stop the banners.  One dealt with a Texas school using the speaker system to announce prayers at football games.  The other deals with the right of a school to shut down a student sign advocating for legalizing pot when the student was at a school event off campus.

    The problem with Texas is lunatics get voted into office and appoint moronic judges who are more concerned with ideology rather than law.  It wasn’t that long ago when Texas elected a Democrat for governor, but now the inmates are running the asylum and our public schools are turned into churches.

  • http://www.facebook.com/conticreative Marco C

    I have been going crazy trying to find the Ambigram. I know it’s probably right under my nose but could someone point it to me?

  • Annie

     On the red banner at the top.  Right of Hemant’s photo, and above the white “friendly Atheist” text.

  • Stonyground

    @1b442f36e377f725d535f7092338ea1c:disqus  Marella
    It may be offensive to the other team, but it appears that God is either really rubbish at sports or he can’t even be arsed to turn up. Their team keeps losing. Maybe the other teams have chariots made of iron.

  • Silentbob

    To those who, like me, didn’t know what an ambigram is – it looks identical if you look at it upside-down.

    I’ve being coming to this blog for years (long before patheos) and never noticed. *blush*

  • Silentbob

    LOL :-)

    Well, it’s just not fair if they’re using God’s kryptonite.

  • Anonymous Atheist

    That particular article about the cheerleader rape case doesn’t specify the location, but several links away, I found one that does… it happened in Silsbee, TX, a close neighbor to Kountze.