Students’ Religious Expression Challenged in Court

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

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15 Responses

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  1. Nathan
    May 12, 2013 - 01:20 PM

    The key here will be the endorsement test, and whether the school allowing it will be an endorsement in the eyes of an objectionable person. This conveyance could be deemed endorsing religion.

    O’Connor wrote:

    The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition…[by] endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.

  2. Jared Cowan
    Nov 18, 2012 - 07:53 AM

    The difficulty is that the understanding is not so cut and dry about religious expression. No one’s saying the cheerleaders cannot hold their Christian beliefs as students or discuss them with other students. But as representatives of the school, there are limitations on their religious expression in that function they hold.

    As students, they are separate from that restriction, as cheerleaders, as anything that extends from the school’s authority, they cannot and should not express a religious sentiment as relates to the school functions, such as sporting events. The supposed loophole of it being student led is not pertinent here, since this is explicit and public expression.

    A loophole is a more private prayer led by students, such as what was done in my high school marching band. My band teacher, a fairly devout Christian in my understanding, at least understood the nuance of church and state separation and permitted upperclassmen in the band to lead a prayer. It was unobtrusive and effective in advancing religious impulses without foisting it on the public as a school sponsored entity.

    If the cheerleaders want the signs, then they can make them and have someone in the crowds hold them as encouragement. But in terms of running through it, it constitutes something closer to the same thing as cheerleaders doing explicitly evangelical charged cheers, which would be equally unconstitutional by the basic notions of church/state separation in the constitution.

  3. Franklin
    Nov 09, 2012 - 04:51 PM

    Great Article. No one has to believe in God or believe in any religion but everyone has the right to their freedom of speech and religious liberties. As Justice Fortes states so well “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” If someone does not like what is on the banners then simply do not look at the banners. The freedom from religion organization and those like them need to understand that religious liberties are constitutional and they just might have to ‘see’ a sign that says GOD and get over it. Stop assaulting personal religious liberties because you claim that it offends you. Every time I hear an atheist say ‘that offends me’ I say good, because you offend me.

    • Jared Cowan
      Nov 18, 2012 - 07:58 AM

      I don’t think anyone insisted, especially on the nonreligious side of this debate, that anyone should be forced to disbelieve. Freedom of belief is very important. It isn’t a matter of not looking at the banners when you are a captive audience within the event and are basically obligated in some sense to pay attention to stuff going on in the field, such as these banners. It isn’t the same thing as people in the crowds holding similar signs.

      Religious liberties are constitutional, as is the freedom of speech, but neither are absolute in the scope of influence that they possess, that much should be made clear. You don’t get a free pass in doing something because you have strong religious convictions, at least not in particular cases, same as freedom of speech or the like. The very fact that restrictions based on libel, slander, etc, exist is proof enough that there are limits on freedoms and for good reason. Any liberty is a balance of positive permissions and negative limitations.

  4. Capu
    Nov 09, 2012 - 01:02 PM

    The football game is a school sponsored event, unless the cheerleaders own the stadium. The cheerleaders and the football players represent the school and this is why they are wearing uniforms with their school’s colors. In consequence, their actions are implicitly backed by the school. You can try spinning this, but these are the facts. Just for a moment be truthful and ask whether your reason to write the article is to fight for constitutional rights or to promote your personal beliefs. How would your arguments apply if the statements written on the banners were non-Christian? If you still feel that anti-Christian statements should be allowed on the football banners, then you are truly fighting for our constitutional rights. Otherwise, you are simply fighting to promote your religion by forcing your dogma on a captive audience. Be careful for what you wish for, for one day you may find yourself in a football game forced to listen to or read statements about the absurdity of believing in a god.

    • Matthew
      Nov 09, 2012 - 07:11 PM

      Capoo, the fact of the matter is they don’t make banners speaking against God, so your point is not relevant. You are just whining because you have people exercising their Constitutional right to evoke a God you don’t believe in.

      Here’s an idea: Read the Constitution. And shut your fucking mouth.

    • Adam
      Nov 10, 2012 - 01:42 AM

      I don’t care what religion the banners are, under Tinker a person who is on school property is still able to express their beliefs. Unless the speech is itself illegal (fighting words, etc…) these cheerleaders should be able to display whatever they want and the owning of the property is not important pursuant to Tinker. The fact that they didn’t use any school PA system and funded the whole cheer on their own makes it not school-sponsored. In the Lakeview-Fort Oglethorpe incident, the cheerleaders had official supervision and used school supplies, so it was right for the banners to be banned in that case. I truly believe that the differences in this case mean that the banners should stay, unless the school starts paying for any of it.

      • Matthew
        Nov 10, 2012 - 05:17 AM

        I disagree, Adam, on two fronts:

        1) It doesn’t matter if the school is involved. If you take the time to read the Constitution, you will notice a) freedom of speech, b) freedom of religion and c) the phrase “separation of church and state” doesn’t appear anywhere.

        2) The only people who complain about things like this are anti-Christian and/or anti-God. These schools could have cheerleaders creating banners that scream “Allu Akbar!” and you would hear not. One. Word. From Americans United et al. They are no different than your neighborhood bully and if you stand up to them they will go away.

      • Adam
        Nov 10, 2012 - 05:00 PM

        I too feel that there is no “separation of church and state,” at least not in the sense that individuals can’t be religious in public. That is ridiculous. I think Lemon v. Kurtzman did a good job defining limitations under the Establishment Clause, but decisions like Santa Fe ISD are going much too far. That being said, Santa Fe ISD is the law as of right now; however, Matthews v. Kountze is the first step to reversing that. So hopefully Americans United will go away soon enough.

      • Chelle
        Nov 12, 2012 - 02:57 PM

        Oh, you would probably hear a word if it was about “Allu Akbar!”

        Better yet, if it was about that instead of God, you’d have a completely different stance.

        But you’re major hypocrit, so thats not surprising.

      • Matthew
        Nov 12, 2012 - 06:57 PM

        Fuck off, Chelle. Nobody asked you for your bullshit opinion.

      • Chelle
        Nov 12, 2012 - 07:30 PM

        Bahahaha, did I miss the announcement that anyone asked you for yours?

      • Chelle
        Nov 12, 2012 - 07:31 PM

        Its kind of adorable how you feel that you’re the only one who has any right to say anything.

        I don’t see Capu asking you for your opinion and yet you gave it.

        Should a hypocrit.

      • Adam
        Nov 12, 2012 - 10:54 PM

        Allahu Akhbar would be slightly provocative, but that is still the right of the cheerleaders if they wanted to use it (God is great afterall). I wouldn’t even mind a surah recitation at a Texas football game, because with the exception of me I doubt anyone in the audience would understand any of the words being spoken (or sung).

      • Chelle
        Nov 13, 2012 - 04:50 AM

        Oh yea, I’m not saying you’d have a problem with it Adam. I’m saying our friend here Matty would.

        And we both know he totally would.

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