Texas Judge Permits Cheerleaders’ Religious Banners, Sets Trial Date

By Mark Walsh — October 18, 2012 3 min read
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A Texas state judge on Thursday issued a temporary injunction allowing a group of cheerleaders to continue to display banners with Christian messages at high school football games.

Judge Steven Thomas, of Hardin County District Court, issued the injunction after a morning hearing in a case that has attracted nationwide attention. The injunction replaces a temporary restraining order that has permitted the 11 cheerleaders, the plaintiffs in the case, to display their banners in recent weeks.

[UPDATED 7 p.m. with judge’s order.
“Plaintiffs have shown a probable injury because the harm is imminent,” Judge Stevens said in his order granting the injunction to the cheerleaders. “If the temporary injunction is not issued, the [school district and superintendent’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 school sporting events.”]

The injunction, though, is not the end of the legal dispute.

The judge set a trial date of June 24, 2013, for the lawsuit, which was filed by the cheerleaders, with the aid of the Plano, Texas-based Liberty Institute. The suit argues that the Kountze High School cheerleaders, a student-run squad, selected the religious messages independently and thus they have a free speech right to display them. The messages include, “I can do all things through Christ which strengthens! Phil 4:13" and “But thanks be to God which gives us Victory though our Lord Jesus Christ. 1 Cor 15:57.” The football team members rip through the banners at the start of each home game.

The Kountze Independent School District, some 85 miles northeast of Houston, had told the cheerleaders last month that they could not display the banners because they represented school-sponsored speech. The district had received a complaint from the Freedom From Religion Foundation, based in Madison, Wis., on behalf of an anonymous local resident.

The district has argued that the banners were akin to the student-initiated prayers before football games that the U.S. Supreme Court struck down in a 2000 case from Texas known as Santa Fe Independent School District v. Doe.

Thomas Brandt, a lawyer representing the Kountze district, reportedly told Judge Thomas in Thursday’s hearing that “the girls are puppets on a string.”

“The superintendent, although making a very unpopular decision, did not make it in malice. He made the decision based on Santa Fe vs. Doe,” Brandt said, according to Associated Press and KFDM-TV accounts. “The political winds are blowing very strong in one direction but the law says something different. This is not a freedom of speech case. This is an issue of the Establishment Clause.”

David Starnes, the attorney representing the cheerleaders, said their banners were not sponsored by the school.

“It is the individual speech of the cheerleaders and not in fact the government speaking,” Starnes said, according to the AP and KFDM accounts. “It is not just one girl or one person in the group that comes up with the quote, but it’s on a rotating basis that each girl gets to pick the quote. That is their individual voices that are being portrayed on the banner.”

Texas Gov. Rick Perry and Attorney General Greg Abbott, both Republicans, came to the aid of the cheerleaders Wednesday when they filed a motion to intervene in the case.

“After receiving a menacing letter from an organization with a reputation for bullying school districts, the Kountze [school district] improperly prohibited high school cheerleaders from including religious messages on their game day banners,” Abbott said in a statement Wednesday. “Those banners, which the cheerleaders independently produce on their own time with privately funded supplies, are perfectly constitutional. The State of Texas intervened in this case to defend the cheerleaders’ right to exercise their personal religious beliefs—and to defend the constitutionality of a state law that protects religious liberties for all Texans.”

Abbott was referring to the Religious Views Anti-Discrimination Act of 2007, a Texas statute meant to help protect student religious speech and require school districts to adopt disclaimers separating the speech of students at school-sponsored events from the school’s own messages.

The Kountze High School Lions are 5-1 in their football season, with their next game coming at home on Friday night, when the cheerleaders are expected to display their religious banners.

A version of this news article first appeared in The School Law Blog.