By Barbara Osborne
It’s a scene out of Friday Night Lights. For years, the cheerleaders at Kountze High School have made and held up banners for the football players to break as they run onto the football field. These banners have generally contained messages that are intended to encourage or inspire the team and the fans. The cheerleaders have always chosen the messages, which were approved by the sponsors of the cheerleading squad.
For the 2012 season, the cheerleaders chose to display Biblical references on the banners, prompting the Freedom from Religion Foundation to send a letter to the school district superintendent claiming that the cheerleaders’ actions violated the Establishment Clause and asking the superintendent to stop the use of religious-themed banners at football games. The superintendent sought the advice of legal counsel and notified school administrators that the run-through banners could not include religiously-themed messages. This prompted the parents of the cheerleaders to file a lawsuit, claiming that the policy was an unconstitutional restriction on speech, denied the cheerleaders free exercise rights, and violated the Equal Protection Clause.
The parents asked for a temporary restraining order prohibiting the schools from enforcing the superintendent’s policy, declaratory relief, and attorney’s fees. In October, the trial court granted the parents’ request for a temporary injunction, allowing the cheerleaders to continue to include religiously-themed messages on the banners. Concurrently, the Kountze school district Board of Trustees studied the problem and 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 facts of this case, Kountze Independent School District v. Matthews, 2014 Tex. App. LEXIS 4951, appear to be ripe for an epic showdown of constitutional rights: Establishment Clause vs Free Exercise, Free Speech, and Equal Protection. However, the trial court held hearings on multiple motions, including the Kountze school district’s plea to the jurisdiction, and both the school district and the parents’ motions for summary judgment. The trial court issued its summary judgment order on May 8th, 2013, denying the plea to jurisdiction but awarding summary judgment to the school district relative to declaratory relief, and granting the parents’ motion for summary judgment as to attorney’s fees. The school district filed an expedited appeal on the denial of the plea to the jurisdiction. At the Texas Court of Appeals, the only issues at stake are procedural.
The case does provide a good illustration of the concept of mootness. The State of Texas defines a case as moot if there is no longer a controversy or the parties no longer have a “legally cognizable interest in the outcome.” Because the Kountze ISD Board of Trustees adopted their Resolution and Order No. 3 allowing the cheerleaders to include religiously-themed messages on their banners, the school district is no longer allegedly violating the cheerleaders rights: their speech is not restricted, they can include religious messages freely exercising their religious beliefs, and they are not being treated any differently than any other student at the school. The Court of Appeals determines that neither of the exceptions to the mootness doctrine that are recognized in the State of Texas are applicable to this case, and holds that the parents’ constitutional and statutory claims have been rendered moot, reversing the trial court’s order denying the plea to the jurisdiction and vacating the temporary injunction.
However, although the case was declared moot for a lack of subject matter jurisdiction because there is no ongoing case or controversy, the parents’ claims under the Declaratory Judgment Act were remanded to determine if they are entitled to attorney’s fees. The Texas Court of Appeals determined that the claim for attorney’s fees was a separate controversy that continued to persist because the parents had obtained a judicial ruling in their favor before the case was rendered moot, and that the lawsuit and subsequent proceedings likely prompted the change in the school district policy.
Although the holding in the case is purely procedural, there are several important things to note about this case. First, it is a Texas Court of Appeals decision, so it has no precedent value beyond that circuit in the state of Texas. More importantly, the Texas Court of Appeals decision in this case does not, in any shape or form, validate the Kountze ISD Board of Trustees Resolution and Order No. 3 allowing the cheerleaders to continue to produce and display religious-themed banners. Because the Texas Court of Appeals determined that they lacked jurisdiction, they could not rule on the substantive issues — Establishment Clause, free speech, free exercise, or Equal Protection — as that would be an advisory opinion, and the Constitution of the United States prohibits the courts from issuing advisory opinions. Previous United States Supreme Court decisions balancing the Establishment Clause with students’ free speech, free exercise, and equal protection rights have not changed. Finally, the decision in this case also does not prohibit a plaintiff with standing from filing a lawsuit against the Kountze ISD Board of Trustees claiming that Resolution and Order No. 3 is a violation of the Establishment Clause.
In my opinion, this case also illustrates a significant problem within our political system. A state actor, the superintendent of schools, utilized legal counsel to establish a policy that likely conformed to current constitutional law precedent. When that policy was challenged by a group of parents, the school district’s Board of Trustees (elected or appointed officials motivated to remain in their positions) chose to implement a policy that likely does violate the Establishment Clause in order to make their constituents happy. Claiming that the new policy reflects community standards subjects all members of the community to the religious beliefs of the majority, a consequence that the drafters of the U.S. Constitution sought to avoid by creating the Establishment Clause. It will be interesting to see how the Board of Trustees feels about their Resolution when a Muslim captain of the cheerleaders wants to include a reference to the Koran on a banner.
Barbara Osborne, J.D., is an Associate Professor teaching in the Sport Administration specialization in the Department of Exercise and Sport Science at University of North Carolina. Prior to her appointment at UNC in 1998, she worked for 14 years as an athletics administrator in intercollegiate athletics.
