Thursday, August 14, 2014
In October 2012, a controversy arose at Kountze High School in Kountze, Texas, over the constitutionality of permitting, and then banning, the high school's cheerleaders from displaying religious messages on the banners that the football team runs through at games. Initially, the Freedom From Religion Foundation challenged the banners as school sponsored speech. The school district agreed and prohibited the banners. The cheerleaders then sued, claiming that the school was infringing on their constitutional rights by limiting their speech. A state trial court agreed. After an intermediate court declared the case moot, it is now on petition to the state supreme court.
The case is particularly fascinating for three reasons. First, it implicates the fine line between religious endorsement and religious accommodation that often consumes so much time in education law classes. Second, it raises unique and difficult circumstances for assessing school sponsored speech. Thinking of my own experiences two decades ago, it seemed cheerleaders were on their own in artistically expressing themselves through banners. I recall them sitting on the gym room floor acting freely. It is hard to imagine that a school could permissibly engage in content based or religious based limitation of that expression.On the other hand, when those signs are displayed in an official way by the school, they may become something more than just the students' speech. This might be akin the the school newspaper, where the student might be free to express him or herself in what he or she submits to the paper for publication, but the final draft that goes out for publication bears the imprimatur of the school and, thus, it is the school's speach, which it can alter or "censor" it, so to speak (although the Court does not use that language).
The question then becomes whether the banners have transformed into the school's speech. This is a tough call, as one's perspective plays a large role in the analyis (and the endorsement test if a court applied it). My guess is that the objective observer would assume that the cheerleaders, not the school, came up with the messages. That makes it private speech. Moreover, unlike Santa Fe v. Doe (prayer at football games case), there is no indication that the school has engineered a system so as to produce a religious message.
Nonetheless, this private speech, if it is that, however, is unique because the school is giving the cheerleaders an exclusive and prominent platform at each and every game, and the cheerleaders are acting in a formal capacity for the school. They are not just random people with signs in the stands. This makes it look like school endorsement of private speech. In other words, it might have become the school's speech.
Although it is not clear anyone has honed in on it yet, the case may also implicate coercion doctrine. I do not know what the athletes are told, but the school or coach may be directly or indirectly coercing the players to run through the religious message, which is problematic even if the banner is not necessarily the school's speech. Moreover, this potential coercion is happening in the most public way possible. In short, the private versus school speech question is a close call, although I tend to think it is school speech. The decisive issue here, however, may not be the cheerleaders, but the players who are coerced into running through the banner.