Constitution Check: Do students speak for themselves, or for the school?

Lyle Denniston examines a recent case of Texas public high school cheerleaders who claim free speech allows them to use religious statements at football games.

The statements at issue:

“It is the individual speech of the cheerleaders and not in fact the government speaking…That is their individual choices that are being portrayed on the banner.”

– David Starnes, a Beaumont, Texas, attorney, in a statement on October 18 defending the public school cheerleading squad in Kountze, Texas, whom he represents in a lawsuit over their right to display banners containing religious messages at the Kountze High School’s football games.

“If the temporary injunction is not issued, the [high school’s] unlawful policy prohibiting private religious expression will remain in effect and the [students] will be prohibited from exercising their constitutional and statutory rights at all football games and other school sporting events.”

– Hardin County, Texas, District Judge Steven Thomas, in an order October 18 temporarily forbidding Kountze High School administrators from banning the display of cheerleaders’ banners bearing religious messages at school football games.  The judge set a trial date of next June 24.

We checked the Constitution, and…

The First Amendment both guarantees religious freedom and forbids official government endorsement or promotion of a particular faith.  Separating the two, though, has long been a problem for the courts as they confront religious expression in the public sphere.   There is no more disputed arena in which this constitutional drama plays out than the public school.   What is happening now in the small eastern Texas town of Kountze is a perfect illustration.

There, the high school cheerleading team for years has prepared banners that are unfurled at the start of home football games, with the Kountze players bursting through the streamers, measuring 30 feet by 10 feet.  They are meant to inspire the team, and encourage the crowd.   They used to be taunts of the visiting team, but this year the cheerleaders decided to engage in what their lawyer calls “positive encouragement.”  And, for these students and followers of the Christian faith, that has meant banners with religious messages, such as “Thanks be to God, which gives us victory, through our Lord Jesus Christ.”

School officials banned the practice this semester, after a protest from a private advocacy group, the Freedom from Religion Foundation, which promotes separation of church and state.  The cheerleaders and their parents sued in Hardin County District Court and, so far, they are winning, with the school ban now on hold by Judge Steven Thomas’s order until a trial can occur, now set for next June.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

The wording of Judge Thomas’ order – and, in fact, the description of the banner activity in the text of the cheerleaders’ lawsuit – both treat the expression on the banners as purely that of the students.   That was decisive for the judge, and it was the strategic choice of the students’ attorney, because the Supreme Court has made clear that government has less power to restrict the private speech of students – even while they are at school – than it does to curtail student expression that seems to speak for the school, making the school the endorser of the students’ message.

When the message is religious, and is attributed to the school system, that violates the First Amendment’s separation doctrine, the Court has said.

How does one know when students are not speaking for themselves?  In a decision in 2000 that has been invoked by challengers to school-sponsored religious speech, the Supreme Court ruled that having a religious invocation at the start of football games, even though uttered by a student chaplain, amounted to an embrace of religion by the public school itself.  That decision came, incidentally, in another Texas case, involving the small town of Santa Fe.

Here were the key facets of that decision, turning the chaplain’s prayers into the school’s message: the invocation was said on school property, at an event sponsored by the school, it was sponsored by the school’s faculty, and it was carried out under a specific school policy encouraging public prayer.   With those characteristics, the Court declared, the invocation “is not properly characterized as ‘private’ speech….The School District has failed to divorce itself from the invocations’ religious content.”

Attorney Starnes, representing the Kountze cheerleaders, obviously had that decision foremost in mind as he drafted their lawsuit.   For example, it said such things as this: “The cheerleading team is student-led and student-run….The faculty sponsors are present at the practices in only a non-participatory, custodial capacity.…The faculty sponsors do not participate in the making of any of the run-through banners….Run-through banners are not required by the school….The cheerleaders in charge of practice each week, in conjunction with the rest of the team, decide what message to put on each banner.…No school official has control over the content or message.”

Obviously, Judge Thomas was persuaded: the message, he concluded, was the students’ speech, and they had a right to express it under the Constitution, the state constitution, and Texas law.   It was not decisive, for this judge, that the message is, in fact, only a Christian one.  It thus is up to the cheerleaders to choose, or not, to vary the message so that it reflects religious tolerance as well as religious freedom.  That is a civics lesson, even if not one required by the Constitution.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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