Appeals Court Sides With Cheerleaders in Kountze Litigation

Dec 8, 2017

A Texas state appeals court has affirmed a trial court’s determination that the religious speech contained in banners displayed by cheerleaders at football games was, in fact, protected speech. Thus, the court properly denied the school district’s argument that it was state-sponsored speech and the school district had a right and obligation to prevent it.
Even though the appeals court had previously deemed the case moot, the Texas Supreme Court had taken up the case, concluding that the school district’s conduct might reasonably be expected to recur. It then remanded it back to the Court of Appeals for further proceedings on the merits.
By way of background, the Kountze litigation was prompted by an order by school administrators prohibiting the Kountze high school cheerleaders from displaying religiously-themed messages on banners that the football players broke through as they ran onto the football field. The administrative decision was prompted by a letter from the Freedom from Religion Foundation which claimed that the practice was a violation of the Establishment Clause. The ban on religiously-themed banners prompted the parents of the cheerleaders to file a lawsuit claiming a violation of First Amendment free speech and free exercise rights, as well as a violation of Equal Protection. The cheerleaders won a motion for a temporary injunction prohibiting the ban; concurrently the Kountze school district Board of Trustees adopted Resolution and Order No. 3, which states that “school personnel are not required to prohibit messages on school banners, including run-through banners, that display fleeting expressions of community sentiment solely because the source or origin of such messages is religious.”
The Kountze school district filed a plea based on governmental immunity and lack of standing, then amended the plea asserting mootness because Resolution and Order No. 3 had been adopted. The trial court denied the appeal and the school district filed an interlocutory appeal. The Texas Court of Appeals held that all of the cheerleaders’ claims (except for attorney’s fees) were moot (Kountze Independent Schools District v. Matthews, 2014 Tex. App. LEXIS 4951). The cheerleaders then petitioned the Texas Supreme Court for review.
The Texas Supreme Court provided de novo review on the application of the mootness doctrine. It is apparent that a justiciable controversy existed at the time the case arose, as the cheerleaders complained about the original decision of school administrators to prohibit religiously-themed messages on their game banners. That school district decision was rescinded, eliminating a justiciable controversy at present, but the Texas Supreme Court determined that the school district could just as easily reinstate its previous policy. Without an action from the school district that made “absolutely clear that the [challenged conduct] could not reasonably be expected to recur.” Throughout the litigation, the school district has maintained that its prohibition of religious messages was constitutionally permissible and currently maintains authority to restrict the content of messages on banners displayed in schools. Because of this, the Texas Supreme Court held that the controversy is not moot, reversed the Texas Court of Appeals decision, and remanded the case back to that court.
Throughout these proceedings, the cheerleaders have tried to reframe the controversy by claiming that the banners are not “government” speech and should not be regulated. Although it seems apparent to most outside observers that cheerleaders do, in fact, represent their school — regardless of whether the school provides funding or not — this adds another twist to the substantive issues in the case which may finally be litigated by the Texas Court of Appeals upon remand. This will be an interesting case to watch if the substantive questions raised by the cheerleaders (free speech, free exercise and equal protection) and the district (establishment clause, sovereign immunity) are actually argued in court.
In the most recent ruling, the appeals court concluded that “where the parents of cheerleaders sued the school district after the superintendent prohibited the cheerleaders from including religious messages on banners, the trial court properly denied the school district’s plea to the jurisdiction because the cheerleaders’ speech on the banners was private speech protected by the First Amendment; Governmental immunity has been waived for private free speech claims; The school district failed to establish the level of control necessary to equate the cheerleaders’ speech with government speech; The cheerleaders’ speech on the pregame banners was not properly characterized as school-sponsored speech; Because each minor cheerleader alleged a breach of her constitutional right to freedom of speech, each minor had standing to bring suit based on a justiciable interest in the controversy.”
Kountze Independent School District v. Coti Matthews, on Behalf of Her Minor Child Macy Matthews, et al.; Ct. App. Tex., 9th Dist.; NO. 09-13-00251-CV, 2017 Tex. App. LEXIS 9165; 9/28/17
Attorneys of Record: (for appellant) Thomas P. Brandt, Joshua A. Skinner, John D. Husted, Fanning, Harper, Martinson, Brandt and Kutchin, PC, Dallas. (for appellee) James C. Ho, Prerak Shah, Gibson, Dunn and Crutcher, LLP, Dallas; David W. Starnes, Beaumont; Kelly J. Shackelford, Jeffrey C. Mateer, Hiram S. Sasser III, Liberty Institute, Plano.


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