Texas judge rules in favor of the 1st Amendment

But the ruling might not have settled the issue of whether the banners are protected free speech, according to an attorney for the cheerleaders’ school district.

State District Judge Steven Thomas determined the Kountze High School cheerleaders’ banners are constitutionally permissible. In the ruling, Thomas determined that no law “prohibits cheerleaders from using religious-themed banners at school sporting events.”

The Kountze school district had initially said the banners could not be displayed after receiving a complaint about them in September from the Freedom From Religion Foundation. The foundation argued the banners violated the so-called First Amendment Establishment Clause that bars government — or publicly funded school districts in this case — from establishing or endorsing a religion.

Thomas ruled that the establishment clause does not prohibit the use of such religious-themed banners at school sporting events.

“This is a great victory for the cheerleaders and now they’re going to be able to have their banners,” said Hiram Sasser, a lead attorney for the Liberty Institute, a Plano, Texas-based nonprofit law firm that represented the cheerleaders.

But Thomas Brandt, the school district’s attorney, argued that Judge Thomas also granted a school district motion in his ruling that says the district can permit the banners under the establishment clause but is not required to do so. Brandt said the motion also says the banners are the speech of the school, not private speech, so the school has a right to have editorial control of the banners.

Initially, the school district ruled the banners could not be displayed. But after a public meeting in February, the school board of trustees issued a resolution in which it wrote that the district was not required to prohibit messages on school banners that displayed “fleeting expressions of community sentiment solely because the source or origin of such messages is religious.” But the trustees said the district retained the right to restrict the content of school banners.

Brandt said while he has yet to talk to the school district about whether or not it will appeal, it may seek some clarification from the judge on his ruling.

But Sasser said there is no ambiguity in the ruling and that the banners are the cheerleaders’ protected private speech.

“We won and they didn’t,” he said, adding that he expects the school district to appeal.

The dispute began during the last football season when the district barred cheerleaders from using run-through banners that displayed religious messages, such as “If God is for us, who can be against us.”

In October, Thomas temporarily allowed the cheerleaders to continue displaying the banners pending the lawsuit’s outcome. Thomas at the time said the school district’s ban on the practice appeared to violate the students’ free speech rights. The Liberty Institute had argued the banners’ messages were not asking anyone to believe in Christianity or accept the faith.

The cheerleaders in Kountze, located about 95 miles northeast of Houston, were supported by various state officials, including Gov. Rick Perry and Texas Attorney General Greg Abbott, who filed court papers seeking to intervene on their behalf. A Facebook group created after the ban, Support Kountze Kids Faith, has more than 45,000 members.

Abbott praised the court’s ruling on Wednesday, calling it a “victory for religious liberties.”

Perry in a statement said the cheerleaders “showed great resolve and maturity beyond their years in standing up for their beliefs and constitutional rights.”

The Freedom From Religion Foundation’s co-president, Annie Laurie Gaylor, was disappointed with the ruling, saying the banners “carry the appearance of school endorsement and favoritism, turning Christians into insiders and non-Christians and nonbelievers into outsiders.”

The Anti-Defamation League also criticized the ruling, calling it “misguided” and saying it “flies in the face of clear U.S. Supreme Court and other rulings.”

Attorneys for the Kountze school district, in initially advising the superintendent to ban the religious statements on the cheerleaders’ banners, argued there have been several precedent-setting rulings by the Supreme Court.

In one of the more well-known cases, the court ruled in 2000 that a practice of allowing student-led prayer ahead of high school football games in Texas’ Santa Fe Independent School District violated the Constitution. In 1992, the Supreme Court made a similar ruling in a Rhode Island case that argued a rabbi’s prayer at a middle school graduation ceremony also violated the Constitution.

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Plushnick-Masti can be followed on Twitter at https://twitter.com/RamitMastiAP