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

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

It is the individual speech of the cheerleaders and not in fact the government speakingThat 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 Schools football games.

If the temporary injunction is not issued, the [high schools] 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.

checkThe 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 Thomass order until a trial can occur, now set for next June.

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 Amendments separation doctrine, the Court has said.

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