A court case that has dragged on for nearly six years has finally come to an unfortunate end, with the Texas Supreme Court deciding not to hear any further appeals. That means high school cheerleaders at a public school district in Texas will be allowed to hoist banners with Bible verses during football games, even if it implies that the school is endorsing the message.
The story began several years ago at Kountze High School when cheerleaders won a lawsuit saying they could raise those biblical banners to support the team during games. 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.
The unusual thing about this case was that the cheerleaders were actually fighting their school district in court (not some atheist or church/state separation 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 or “To Hell with Jesus” 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 was concerned about that second question, and it worried them. They didn’t want to be punished for the students’ promotion of Christianity. That’s why their lawyers filed the 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 — all they had to do was change the policy again — and everyone would be right back to square one in terms of whether or not this was legal. This case needed a resolution. So back to the Ninth Circuit Court of Appeals this went.
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. It the sort of ruling that you would never see if these students were holding up banners promoting Islam or Satanism.
And then the case got even more complicated.
Earlier this year, the Kountze Independent School District asked the Texas Supreme Court to overturn that September decision. (The District actually 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) was that the current state of affairs makes no sense to anybody for reasons mentioned above, and they still had no idea if they were liable for damages if someone sued claiming the banners were a constitutional violation.
More the point, the ruling contradicted what so many other federal courts have said, which is why the District wants more clarification.
They laid 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?
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 said the Texas Supreme Court should have tossed 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, they said, on account of that alone.
So there were multiple reasons the Texas court needed to overturn the decision. One was technical; the other was based on the arguments themselves.
And today? The Texas Supreme Court essentially told the District to go away. They’re not rethinking this one. The case is settled… in theory, anyway. Certainly not in practice.
Tom Brandt, Kountze ISD’s attorney, said he was disappointed with the decision but held out hope his clients may have a chance to appeal.
“We’re not happy with this result, but I’m not willing to say that there’s no possibility we can change this,” Brandt told The Dallas Morning News. “I don’t think the case is completely over.”
The disconnect between that federal case and this state case, Brandt said, could keep their lawsuit alive: “Those two cases are still in tension. They haven’t been resolved.”
The Christian Right doesn’t care about that because they can claim victory for the Jesus-loving cheerleaders. But the legal problem still exists: Right now, 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 District has no business putting a stop to it when it goes too far. Yet the District possibly remains on the hook for Establishment Clause violations if anyone files a lawsuit over the matter.
It’s all just a giant mess. And after today, while conservatives celebrate a victory, everyone else is more confused than ever.
(Thanks to Brian for the link. Large portions of this article were published earlier.)