Next week a Texas state court will address a lawsuit filed by Kountze High School cheerleaders on some of the hottest issues in Texas: religion, schools, and football. The cheerleaders allege that their school superintendent prohibited them from writing religious messages on banners at football games, in violation of the First Amendment. The case wades into the murky legal waters regarding student-initiated prayer at school events. Was the school district’s decision the right choice? Here is this school lawyer’s take.

The Facts

The Kountze High School cheerleaders, dressed in uniform, hold 30’ x 10’ banners for their football team to run through at the beginning of football games. Cheerleaders use such banners across the country, typically with sayings like “Beat the Bulldogs” or “Trounce the Tigers,” and the cheerleaders are typically allowed to choose what is on the banners. But these Texas cheerleaders chose sayings from the Bible for their signs. An example of the language used is: “But thanks be to God, which gives us Victory through our Lord Jesus Christ. 1 Cor. 15:57.”

Based on a letter from the Freedom From Religion Foundation (FRFF), which advocates for the separation of church and state, the school district superintendent prohibited the cheerleaders from unfurling further religious banners. The story since has gone viral, with recent coverage by the New York Times, the Wall Street Journal, the Washington Post and the Los Angeles Times. Last week, a Texas state court judge refused to grant the cheerleaders a temporary injunction, but reportedly did agree to extend a temporary restraining order until the parties could meet in court to address the cheerleaders’ request for a permanent injunction. The parties will face off in court next week.

Tenuous Confidence

Both sides appear quite confident in their legal arguments, but there is no court case that directly addresses the issue before the Texas court. In its written response to the lawsuit, the school district relied on a 2000 United States Supreme Court case, Santa Fe v. Doe, in which the Court struck down a school district policy allowing student-led prayer over a loud speaker before football games. The FRFF also relied on that decision in a brief in support of the school district.

However, the Texas Attorney General wrote in a letter to the school district superintendent, claiming that the Santa Fe district’s endorsement of prayer over a loud speaker was different from the cheerleaders’ banner, which was private student speech by the students. Also, the Attorney General argued that, unlike the school district in Santa Fe, there was no evidence that Kountze High School directed or even encouraged the religious content on the religious banners.

For its part, the Texas Attorney General also seemed quite confident that case law answered the question in the cheerleaders’ favor. The Attorney General argued that the federal appellate court with jurisdiction over Texas and other states had “recently vindicated these legal principles—and rejected FFRF’s restrictive view of the First Amendment—in a case involving Medina Valley ISD in Castroville, Texas.” Yet the Medina decision—a one paragraph decision with no substantive analysis—does not support the cheerleaders’ position directly, if at all.

Which Side Is Right? 

So which side has the winning argument? At first glance, it seems that the cheerleaders have a decent position. There is no evidence that the school has any hand in controlling the content of the banners used by the cheerleaders. This is in sharp contrast to Santa Fe, where the Supreme Court zeroed in on the school’s guidelines about the prayers at football game and even invited and encouraged religious messages. Also supporting the cheerleaders’ position are a number of cases from across the country that recognize that truly private, student-initiated prayer is appropriate at school and school-related functions, such as graduation.

Still, a close reading of relevant cases suggests that the school district in this case appropriately limited the patently religious speech. Here’s why:

• The speech is obviously Christian and is not a one-time occurrence, and so differs from speech approved in previous cases stemming from Santa Fe. In those cases, courts have upheld student-led prayer that is approved by a vote of the students and is nonsectarian and nonproselytizing at high school graduation ceremonies. Here, the banners are patently Christian and proselytizing because they refer to a particular religious figure: Jesus. Also, football games are not once-in-a lifetime events, like graduation, where courts recognize that prayer may be appropriate.

• The school district here could be seen to be endorsing the religious banners. In Santa Fe, the Supreme Court explained that its concern with the context in which the prayer was presented at a football game:

the invocation…is delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property…It is fair to assume that the pregame ceremony is clothed in the traditional indicia of school sporting events, which generally include not just the team, but also cheerleaders and band members dressed in uniforms sporting the school name and mascot. The school’s name is likely written in large print across the field and on banners and flags. …In this context the members of the listening audience must perceive the pregame message as a public expression of the views of the majority of the student body delivered with the approval of the school administration.

These same conditions exist when a school district permits cheerleaders to hold up Christian banners at a football game, so large that they cannot help but be seen and read from the stands, and would raise the same concerns that the message is endorsed by the public school.

• Participants in the stands might be coerced into participating in a religious exercise because of the banners. In the 1992 case Lee v. Weisman, the Supreme Court held that a school’s “action must not ‘coerce anyone to support or participate in’ a religious exercise.” And the Santa Fe Court found such coercion in the context of a religious message delivered over a public address system at a school football game, because participants in the stands are forced to hear the message. It is difficult to see the difference between that context and the one here, where participants in the stand are forced to see a similar message. In order to see the football players run through the banner to start the game, the participants in the stand must look at the banner and will inevitably read it.

• Other Supreme Court cases—apparently ignored by the parties in the Texas cheerleader litigation—may also support the school district’s position:

In Morse v. Frederick, a 2007 case, the Supreme Court upheld discipline of a student for waving a banner saying “Bong Hits 4 Jesus” at an off-campus, school-approved activity. This was true even though the student created the banner with his own materials and on his own time (as do the Texas cheerleaders). Although that case centered on speech promoting illegal drug use, the Court’s explanation “failing to act [to take down the banner] would send a powerful message to the students in [the school administration’s] charge … about how serious the school was about the dangers of illegal drug use.” Here, too, a failure by the school district to act could equally send a message about the school district’s stance – in this case, on religion.

In Hazelwood School Dist. v. Kuhlmeier, a 1988 case, the Supreme Court addressed a school newspaper, which the Court called “expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.” The Supreme Court held that the school district could limit what students wrote about in the school newspaper because “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.” Here, arguably, the cheerleaders’ banners were not so different from the school newspaper – a blank slate upon which students were allowed to express their ideas to other students and members of the school community. The school district arguably has a legitimate pedagogical reason not to allow students to express Christian viewpoints in that medium.

For all of these reasons, this school lawyer thinks that the school district was right to prohibit the cheerleaders’ patently Christian speech in this context. Next week, we will find out whether the Texas state courts agree.