On October 18th, a Texas district court judge issued a temporary restraining order allowing cheerleaders at Kountze High School to display banners quoting 1 Cor. 15:57 and John 3:16. The ban had been imposed on the cheerleaders by Kountze Independent School District (ISD) superintendent Kevin Weldon after the Wisconsin-based Freedom from Religion Foundation sent him a letter explaining that the practice was unconstitutional. The Texas-based Liberty Institute soon responded by filing a motion for a permanent injunction against the ban. The main question in this case is whether or not the banners violated the separation of church and state. More specifically, were the banners sponsored by the school, and can the school restrict students’ religious expression? Also, if the injunction is upheld against the school district in favor of the cheerleaders, would an attendee of one of the football games even possess standing to file for an injunction stopping the presentation of the banners?

Were the Banners School Sponsored?

Were the banners sponsored by the school? In order to answer this, it is necessary to lay out very clearly the exact process of how the banners were produced and exhibited. The cheerleaders in Kountze first got the idea from another school, Lakeview-Fort Oglethorpe High School, which has since banned prayer banners. They proceeded, with no official involvement, to create the banners expressing their views. They bought the supplies on their own, they organized their routine on their own, and they even bought their own uniforms. The school had no part in the creation or display of the prayer banners, so it would appear that the banners were not school sponsored.

In her letter to Weldon, Freedom from Religion Foundation attorney Stephanie Schmitt cited Santa Fe ISD v. Doe (2000) in support of her claim that the banners were unconstitutional. In Santa Fe, student-led prayers, organized by school officials, were conducted over the school’s public-address system at the beginning of sporting events. As should be apparent, this case differs from Matthews v. Kountze ISD (2012) in two important ways. One glaring difference is that it was a prayer, which encouraged participation from the audience. More importantly, however, is that the prayer was delivered “on school property, at school-sponsored events, over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer.” Despite the banners being on school property at a school-sponsored football game in Kountze, they should be considered private speech since the school had no direct involvement in their creation or display, or allow the cheerleaders to amplify their message via a school-owned public-address system. The question then becomes can a school prohibit private speech on its grounds?

A Student’s Right to Express Faith

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Such was the insight of Justice Abe Fortas when he wrote his landmark opinion in Tinker v. Des Moines (1969). Hardin County State District Judge Steve Thomas, who presided over Matthews v. Kountze ISD, followed a similar train of thought when he found that students had “a right to express faith on school property.” If this is true, then a Kountze High official’s announcement that students could “no longer make public displays of religion during football games” must be considered unconstitutional.

Texas Attorney General Greg Abbott was pleased with the ruling because Judge Thomas didn’t allow himself to be pressured into upholding “restrictive religious speech policies that go well beyond what is required by the United States Constitution [in public schools].” I wholly agree with Abbott’s stance on this issue, specifically with his statement that, “The Constitution does not command religious silence at school. It just prevents the school from dictating religious belief. This was the students doing it on their own, and they have every right to do so.”

What Harm Comes From the Banners? 

Freedom from Religion Foundation attorney Andrew Seidel said that he is taking the decision to the federal courts, but would he have a victim standing to sue? The banners are not like football or graduation prayers, which can single people out coercively, and can thus be enjoined pursuant to Lee v. Weisman (1992). That doesn’t mean a spiteful parent won’t file a suit trying to restrict the cheerleaders’ personal religious expression.

Take, for instance, Schultz v. Medina Valley ISD (2011), a case in which Christa and Danny Schultz sued, on behalf of their son, to block religious expressions at their son’s graduation. The laughable part is that Americans United for Separation of Church and State filed a motion for “emergency relief” on behalf of the Schultzes in order to prevent the “irreparable harm” the graduation prayer was allegedly going to have on their son. The not so funny part is that Chief U.S. District Judge Fred Biery agreed and ordered to the school to remove the terms “prayer,” “bow their heads,” “amen,” “benediction,” and “invocation,” from the graduation program. Fortunately, the 5th Circuit overturned Judge Biery’s decision. The mother of the valedictorian in this case summed up, and generalized, the 5th Circuit’s decision quite nicely when she asserted, “No citizen has the right to ask the government to bind and gag the free speech of another citizen.”

In former years, the Kountze High banners featured “rabble-rousing slogans,” but the cheerleaders found those to be unsportsmanlike, and chose to use Bible verses this year instead. However, the Freedom from Religion Foundation decided that unsportsmanlike was better than moral and decided to interfere. There was no problem until anti-religious activists from Wisconsin got involved, but that is to be expected from bullies. Whether it is the ACLU, the Southern Poverty Law Center, Americans United, or the Freedom from Religion Foundation, there are always liberal attorneys attempting to take away our freedom of religious expression. Luckily, Judge Thomas is allowing the banners to be used for the rest of the season, pending a trial set for June.

Adam Ondo | University of Rochester | @JoplinMaverick