By Josh Isom
The Southeastern region of the United States — sometimes referred to as the Bible Belt — greatly values three areas of life: family, faith, and football. A combination of the latter two has stirred up some controversy in athletics as of late. The Kountze High School Lions’ football team is a 3-A program located in Kountze, Texas. During their games, cheerleaders at the school have a long history of creating run-through banners with inspirational messages for players and fans. The materials used to craft the banners, as well as the uniforms worn while the players run through them are both privately funded by the group. The school has minimal involvement with cheerleaders’ banners, usually only examining the finished version for compliance with school policy preventing obscene, disruptive, or otherwise inappropriate speech during school-related activities.
During the 2012 high school football season, the cheerleaders began including Bible verses on the banners as a form of encouragement. The practice continued until the fourth game when Kountze Independent School District (KISD) superintendent Kevin Weldon ordered school administrators to forbid any banners with religious references. Many cheerleaders, along with their parents, then filed a complaint and requested a temporary injunction allowing them to continue creating religious banners.
KISD’s immediate course of action involved using Walker v. Sons of the Confederate Veterans (2015) as reasoning and requiring all cheerleader banners only express the school’s speech, which could be completely governed by KISD. In Walker Texas citizens were granted the option to use either ordinary or specialty license plates that are approved by the Department of Motor Vehicles. Because the state has a history of conveying messages to the public via these specialty license plates, the courts determined them to be a form of government speech and struck them down as unconstitutional. In its rationale behind the banner restrictions, KISD asserted its cheerleading scenario mirrored that of Texas and their license plates. The cheerleaders on the other hand believe because they convey the messages on the banners and not the state, the Bible verses do not constitute government speech and are therefore permissible.
In Walker, the court accentuates the connection between the Texas license plates and the state: “Each Texas license plate is a government article serving the governmental purposes of vehicle registration and identification,” (p. 2) and that “The governmental nature of the plates is clear from their faces: The State places the name ‘TEXAS’ in large letters at the top of every plate. The State requires Texas vehicle owners to display license plates, and every Texas license plate is issued by the State” (p. 2). It also adds, “Texas also owns the designs on its license plates, including the designs that Texas adopts on the basis of proposals made by private individuals and organizations” (p. 10). This evidence of government nexus distinguishes the Walker case from that of the cheerleaders’. KISD’s assertion cheerleaders are the school’s “representatives” is negated because this is legally impossible; cheerleaders are not able to undertake key functions such as entering into a binding agreement on behalf of the school. Their status as a representative is completely symbolic and informal.
As several months of litigation passed, KISD began to recant a portion of its argument and agree that the cheerleaders’ practice of including religious messages on the banners does not violate the Establishment Clause. However, it maintains its stance that the banners are considered government speech and the school should have sole control of the final messages disseminated to fans. This presents an interesting dilemma — if the school maintains control over the cheerleaders’ banners, how can the religious messages on the banners not violate the Establishment Clause? Moving forward, the court should critically assess the potential repercussions of allowing KISD excessive intrusion into student expression. If cheerleaders are not representatives of the school, disallowing religious messages because of their content could violate their First Amendment freedom of speech and open the door for other schools to follow suit.
As an aside, the Attorney General for the State of Texas recently filed the this brief in support of the cheerleaders:
Isom is a graduate student in sports administration at the University of North Carolina.
References
Coti Matthews v. Kountze Independent School District https://www.texasattorneygeneral.gov/files/epress/files/2015/ Brief_of_Amicus_Curiae_the_State_of_Texas.pdf
Walker Chairman, Texas Department of Motor Vehicles Board v. Texas Division, Sons of Confederate Veterans http://www.supremecourt.gov/opinions/14pdf/14-144_758b.pdf
