Cheerleaders in Kountze, Texas have a practice of putting Bible verses on the banners they hold up at football games. Banners have been painted with phrases such as “If God is for us, who can be against us?” and “But thanks be to God which gives us Victory through our Lord Jesus Christ.” The Kountze school district banned this practice on the ground that it amounts to religious expression sanctioned by the school, and thus violates the Establishment Clause of the First Amendment. The Religion Clauses of the First Amendment disallow the government from making any laws respecting the establishment of religion or prohibiting the free exercise of religion. While these clauses do not prohibit all religious activity in public schools, they work to regulate when, and how, religious activity may be conducted.
The cheerleaders and their parents sued the school district, claiming that the district’s actions violated the cheerleader’s First Amendment right to freedom of speech. The crux of their argument is that because the cheerleaders created the banners without the involvement of school officials, without school resources, and because they independently selected the messages to be placed on the banners, their expression amounted to private speech and thus is subject to robust constitutional protection.
Recently, a Texas state court judge agreed with the cheerleaders and granted their motion for a temporary injunction. See Matthews v. Kountze Indep. Sch. Dist., No. 53526 (Tx. Oct. 18, 2012). The court found that if it denied a temporary injunction, the school district’s “unlawful policy prohibiting private religious expression will remain in effect and the Plaintiffs will be prohibited from exercising their constitutional and statutory rights at all football games and other sporting events.”
As the case proceeds through the court system, the question it presents is whether the expression was student-driven private speech, which is highly protected by the First Amendment, or government-sponsored speech that can more easily be regulated.
In 2000, the Supreme Court ruled that a school district’s policy of permitting student-led, student-initiated prayer at football games violated the Establishment Clause. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000). The Supreme Court made clear that the Constitution does not prohibit public school students from voluntarily praying at any time before, during, or after the schoolday, but that the Constitution is violated when the state affirmatively sponsors the particular religious practice of prayer. Id. at 313.
As the Matthews case goes forward, the question of whether the religious messages on the banners constitute government-sanctioned religious expression will be answered, giving school districts further insight into this complex legal area.