The Texas Supreme Court Will Soon Decide if Bible Banners at High School Football Games Are Legal July 24, 2015

The Texas Supreme Court Will Soon Decide if Bible Banners at High School Football Games Are Legal

In 2013, the Kountze High School cheerleaders won a lawsuit that said they could hold up banners with Bible verses on them to support the football team:

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, he was simultaneously telling the district it couldn’t stop them from being all preachy on the football field. Thomas wrote in his decision (PDF):

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.

First, it just made no sense at all. 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?

Also, the decision wasn’t very clear about what was allowed. Judge Thomas wrote that no law “requires Kountze I.S.D. to prohibit the inclusion of religious-themed banners.” In other words, the District didn’t have to put a stop to the students’ banners.

But suppose the cheerleaders held up their Bible banners again the following year and a local parent got upset over it. Could that parents sue the District for promoting religion? And would the District have to pay up when they lost? The District didn’t know the answer to that question.

Because of that lack of clarity in Thomas’ decision, the lawyers for the District filed an appeal — in essence, continuing a battle against the district’s own students — just to clarify 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 the cheerleaders could continue hoisting their religious banners — it would keep the District off the hook in the face of any future lawsuit. (You can’t sue us! We were just doing what the judge told us to do!)

While that was all 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.

In other words, 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:

This is an interesting turn of events for Kountze ISD thanks to proactive legal strategy on the part of the district. Rather than decide the constitutionality of the district’s actions, the court found that there was no longer a controversy to decide.

But that didn’t end the problem. Now the District and the cheerleaders were all saying the religious banners were okay. That’s still unconstitutional! Just because it’s a “fleeting [expression] of community sentiment” doesn’t make it legal.

The cheerleaders (now siding with the District) weren’t done fighting, though:

Although it was no longer a contested issue, the trial court later ruled that the banners did not violate the First Amendment. Because the trial court did not dismiss the cheerleaders’ claim for attorney’s fees, however, the school district appealed.

In May, 2014, the Court of Appeals of Texas dismissed all appeals related to the substantive issues of the case. Attorneys for the cheerleaders appealed, however, and the matter is now before the Texas Supreme Court.

In short, this case is still going on, and no ruling has been made yet on the actual substantive issues. That’s what the Texas Supreme Court will have to decide soon, and several church/state separation groups filed an amicus brief yesterday making their case:

The District’s policy allowing “fleeting expressions of community sentiment” is not supported by the case law, which clearly prohibits public schools from promoting biblical tenets and other religious messages to students. Allowing the banners to be displayed on this ground would strike at the heart of the Establishment Clause by giving broad cover to public schools across Texas to impose the majority’s religious beliefs — under the guise of majority “community sentiment” — on their religiously diverse student bodies.

While all students have the right to practice their faith privately in the public-school setting, official religious promotion alienates and excludes students of minority faiths and nonbelievers and sparks religious tensions and divisiveness within school districts. This Court can ensure that these harms do not continue. Amici urge the Court to hold that the run-through banners are sponsored by the District, and that the Establishment Clause prohibits the District from using this official platform to promote Bible verses or other religious messages to students at school events.

As long as football games remain school-sponsored events, and cheerleaders are wearing uniforms with the school’s logo, and the District pays for coaches for the cheerleader squad, and the District even admits these banners are religious (“fleeting expressions of community sentiment”!)… can’t we all admit this is a clear example of a public school District promoting religion?

The District shouldn’t force a non-Christian cheerleader to have to choose between violating her faith or being an outcast from the team.

Under these circumstances, students of minority faiths and nonbelievers will feel alienated from their peers and will be deterred from exercising or expressing their faith in school, lest they be further ostracized or retaliated against for not subscribing to the officially favored religious beliefs. Some students might even feel compelled to adopt, or pretend to adopt, the favored biblical beliefs. Christian students might also be offended and feel excluded by the practice, believing that the school’s use of sacred scripture to cheer a football team to victory devalues their spiritual beliefs. But they, too, would likely be reluctant to object given that the run-through banners bear the imprimatur of school officials.

This isn’t a tough call. It’s illegal promotion of religion.

Then again, this is Texas, so who the hell knows what they’ll do.

(Portions of this article were published earlier)

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