TX Court Will (Again) Decide if Cheerleaders Can Praise Jesus at Football Games

A court case that never seems to end, involving a public school district, high school cheerleaders, and Jesus, will be dragging on even longer. But to make any sense of it, you have to understand the complicated backstory.

A few years ago, the Kountze High School (TX) cheerleaders won a lawsuit that said they could hold up banners with Bible verses on them to support the football team during games. And last September, an appeals court affirmed that decision, opening the door to even more religious signs, held up by student athletes, at school-sponsored events.

You may recall that the cheerleaders were actually fighting their school district in court (not some atheist group) because then-Superintendent Kevin Weldon had told them to stop with the banners. So when Judge Steve Thomas ruled in favor of the cheerleaders in 2013, he was simultaneously telling the district it couldn’t stop them from being all preachy on the football field. Thomas wrote in his decision:

The evidence in this case confirms that religious messages expressed on run-through banners have not created, and will not create, an establishment of religion in the Kountze community.

Neither the Establishment Clause nor any other law prohibits the cheerleaders from using religious-themed banners at school sporting events. Neither the Establishment Clause nor any other law requires Kountze I.S.D. to prohibit the inclusion of religious-themed banners at school sporting events.

There were two big problems with this ruling, according to church/state separation experts.

First, it made no sense. How could any reasonable person see cheerleaders in school uniforms hoisting banners with Bible verses on them and not see a link between the school district and Christianity? (If there was profanity on those banners, would a reasonable person say the District had no right to put a stop to it?)

Second, the decision wasn’t very clear about what was allowed. Even if the District couldn’t stop these cheerleaders from promoting their faith-based message, what would happen if a local parent got upset over it? Could that parent sue the district for promoting religion? And would the district have to pay up if/when they lost?

The District didn’t know the answer to that second question, and it worried them. That’s why their lawyers filed an appeal — in essence, continuing a battle against the district’s own students — just to settle the question of whether or not the banners were okay.

We think the attorneys on the other side are reading into the court’s decision rights that just aren’t there,” said Attorney Tom Brandt of Fanning Harper Martinson Brandt & Kutchin in Dallas, who represents Kountze ISD, in a statement. “The school district believes that it is in everyone’s best interests to seek clarification rather than subject the district to additional costly litigation in the future. The school board’s decision to appeal was not made lightly, particularly given the fact that the district court’s order actually granted some of the relief the school district sought, namely, that Kountze ISD is not required to prohibit religious-themed banners at school sporting events.”

It was actually a pretty savvy move on the District’s part. Even if they “lost” the appeal — and the higher court said that the cheerleaders could continue hoisting their religious banners — the District would be off the hook in the face of any future lawsuits about this issue against them. (You can’t sue us! We were just doing what the judge told us to do!)

While that appeal was happening, the District changed its policy to allow such banners:

On April 8, 2013, the Kountze ISD Board of Trustees adopted Resolution and Order No. 3, which states, in part, that school personnel are not required to prohibit messages on school banners, including run-through banners that display fleeting expressions of community sentiment solely because the source or origin of such messages is religious.

So the District passed its own resolution saying they didn’t have to ban religious banners. Because that policy put the District and cheerleaders on the same side, the legal fight was essentially moot. And the whole case was soon dismissed. Just as it should’ve been.

But Christian Right groups can’t fundraise off of a case that’s no longer bring fought… so they kept this going. With the support of conservatives in the Texas government, lawyers representing the cheerleaders asked the state’s Supreme Court to re-litigate this issue. And it worked. The Texas Supreme Court voted unanimously to reverse the decision to end the case.

Their argument went like this: Even if this particular case was moot, the District could still ban the banners in the future, and everyone would be right back to square one in terms of whether or not this was legal. This case needed a resolution. So they sent the case back to the Ninth Court of Appeals in Texas.

And last September, the conservatives got exactly what they wanted. The Court ruled that the cheerleaders’ banners were “the pure private speech of the students” without any connection to the District.

This was an absurd conclusion since a more socially unacceptable opinion on those banners would surely be treated completely differently. As it stood, the cheerleaders could promote Christianity at a school-sanctioned event, and the District could legally say it couldn’t do anything about it. (If these weren’t Christian students — if they were Satanists or Muslims instead — does anyone think Texas would let this slide?)

But here’s where the case gets even more complicated now.

This week, the Kountze Independent School District asked the Texas Supreme Court to overturn that September decision. (The District asked the Appeals Court to rehear the case, but that request was rejected in October.)

The District’s argument (and the belief held by the church/state separation side) is that the current state of affairs makes no sense to anybody. How could the courts possibly say the cheerleaders’ banners are neither school-sponsored or government speech? If the cheerleaders’ banner said, “Jesus never existed,” wouldn’t the District have an obligation to do something about it? According to the courts, no they don’t, and it’d be wrong for them to interfere.

But that belief contradicts what so many other federal courts have said, which is why the District wants more clarification. They lay out the big question very bluntly:

The run-through banners at issue in this case were held by public school cheerleaders while they were cheering for the school’s football team, while they were in uniform at a school-sponsored event, and while they were on the school’s football field to which access was limited by the school. In this circumstance, is the message contained on the run-through banners the private speech of the individual cheerleaders or is it the school’s speech?

They add:

If the Court were to deny the Petition for Review, Texas school districts will not know how to treat cheerleader speech, as it is considered government speech in Texas federal courts and individual speech in Texas state courts.

The District also says the Texas Supreme Court should toss out the previous ruling for another reason: the entire case is moot. All the cheerleaders have graduated and therefore nobody has any legal standing to bring forth this case. The Appeals Court never should have decided the case on account of that alone.

So there are multiple reasons the Texas court should overturn the decision, the District says. One is technical; the other is based on the arguments themselves.

Either way, this case has created far more confusion in the name of Jesus, and the result right now is that cheerleaders in Texas can promote whatever wacky ideas they have while standing in school uniforms, on school property, during a school-sanctioned event. But the courts believe the school has no business putting a stop to it when it goes too far.

What. A. Mess.

(Thanks to Brian for the link. Large portions of this article were published earlier.)

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