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.
Now an appeals court has 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.
One: 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?)
Two: 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 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.
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. 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 relitigate 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 on Thursday, 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. It’s an absurd conclusion since a more socially unacceptable opinion would surely be treated completely differently.
There is, once again, the option to appeal, but what’s the point? We know how this case will end in Texas. These girls were promoting Christianity while cheerleading at a school-sanctioned event, and the courts are acting like the District has no part to play in any of this.
If these weren’t Christian students — if they were Satanists or Muslims — does anyone think Texas would let this slide?
(Thanks to Brian for the link. Large portions of this article were published earlier. I have corrected the piece to say the decision came from the Ninth Court of Appeals in Texas, not the federal Ninth District Court of Appeals.)