God, Football, and Texas

Law and religion scholars and others may have been following with interest the case of a Texas high school football cheerleading squad that has been litigating for the right to display banners featuring religious messages--typically Bible verses--at football games. Here's a recent story about a state court ruling last week enjoining the school district and allowing the practice to continue, and here is the state's petition to intervene in the case, which includes some relevant details. 

The New York Times has an editorial about the controversy today. It argues that the conduct violates the Supreme Court's 2000 decision in another Texas football/religion case, Santa Fe Independent School District v. Doe. The editorial says that in that case, "[T]he Supreme Court said the Constitution prohibits a student from delivering prayers over the public address system before each football game because that practice violates the First Amendment’s Establishment Clause, which forbids government from favoring a particular religion." It argues that the various public officials, including the governor, who have jumped very visibly onto the  cheerleaders' bandwagon "are blind to the dangers to religious freedom when government shifts from being neutral about religion to favoring a particular one." 

Some of my friends and co-bloggers take a particular delight in bashing the Times for its failings; I'm not one of them.

But I think the editorial overstates the meaning of Santa Fe and lacks enough information to say whether the banners' display violates the Establishment Clause. The problem in Santa Fe was not simply that religious messages were being broadcast at a school event. In some circumstances, such as the inclusion of religious messages in a valedictorian address at a graduation by a student who has been fairly selected according to academic criteria rather than by virtue of the likely content of her speech, there is no constitutional problem with such a religious message, even if the school's resources are used to amplify and broadcast it. The problem arises when the school, through overt or covert means including the use of fairly foreordained school-administered student voting, is actively involved in collaborating with students to encourage or engineer the dissemination of religious messages. The summary of the editorial on the Times's web site reads: "A Texas case about religious expression at a public school is testing whether a landmark Supreme Court ruling is still the law of the land." The editorial itself doesn't go that far, and I don't blame the editorial writer for what was posted by some website staffer. But that statement certainly is overstated. The question is whether Santa Fe applies in this case; this isn't a frontal assault on that opinion, as Texas's petition makes clear. Nor does the editorial have anything to say about Texas's Religious Viewpoints Antidiscrimination Act, which arguably applies here and which has both uncontroversial and more controversial aspects.  

Does Santa Fe apply here? That depends on the facts, which unfortunately I haven't been able to find in any decent form in the stories covering the controversy, or in the short judicial order enjoining the school. The cheerleaders say they chose the messages on the banners themselves, and made them off school property. That's a start. But I would want to know whether that choice was unilateral and unanimous, whether the school was openly or quietly involved in the process, what rights a single dissenting cheerleader would have to display a different banner ("The Kountze Lions--products of evolutionary triumph!"?), and so on. Without such facts, the practice might be permissible. If the school, the coach or faculty advisor, or other officials were more involved, however, it would be a different story.

Those who are interested in Texas high school football and the Religion Clauses, and who have already burned through all the episodes of Friday Night Lights, may want to read my paper on the Santa Fe case. For a broader overview of Texas school conduct--and some public threats against those who have complained about various religious practices, including school-sponsored practices, in and around Texas schools, especially since Santa Fe--see this recent ACLU of Texas report, available at a link here. Whether the cheerleaders are within their rights, which they may be, or not, it's worth reading this report and remembering that there's a reason the plaintiff in the Santa Fe case was called "Doe."       

UPDATE: Marc DeGirolami has a post on the case here. He notes quite correctly something I should myself have noted: that the Santa Fe defense seems to have dropped out of the litigation. Like Marc, I find that odd.