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Monday, October 22, 2012

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. 

Posted by Paul Horwitz on October 22, 2012 at 08:59 AM in Paul Horwitz | Permalink


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One thing that I've found tremendously bothersome about this case, and about the vigorous defense of cheerleaders' speech rights that has been mounted by our well-coiffed governor with respect to the Kountze cheerleaders, is the blatant inconsistency with the Doe v. Silsbee ISD case decided by the Fifth Circuit a couple years back. In that case, a cheerleader who refused to cheer for an athlete she alleged had raped her was dismissed from the squad, sued for a violation of her First Amendment right not to speak, and was poured out on appeal. In the most tone-deaf passage of the opinion, the Fifth Circuit held that "[i]n her capacity as cheerleader, H.S. served as a mouthpiece through which SISD could disseminate speech--namely, support for its athletic teams."

The only conclusion I can draw is that, here in Texas, cheerleader speech is private and protected by the First Amendment if it is religious in nature, but governmental in character and so unprotected from school interference otherwise. Setting aside at least temporarily the issues of Santa Fe and the Texas RVAA, it seems to me that there's no plausible justification for that kind of disparity of treatment. And if the Kountze cheerleaders' speech is governmental in character, as held in the Silsbee case, the case under Santa Fe and the RVAA seems much harder, if not impossible, to make.

Here's a link to the Silsbee ISD opinion: http://www.ca5.uscourts.gov/opinions/unpub/09/09-41075.0.wpd.pdf

Posted by: Ryan Bates | Oct 22, 2012 4:25:12 PM

Re facts -- some facts in this case seem disputed. For instance, to Marty's point that this was the speech of an entire official student organization (the cheerleading squad), the cheerleaders' attorney is now arguing that actually they had a rotating turn-by-turn system whereby each individual cheerleader got to pick one quote herself, so that this is "individual" speech by each cheerleader (amplified, I suppose, by her fellow cheerleaders who collectively produced the large paper banners). I have no idea whether this is true or a post hoc rationalization, and even if true I'm not sure it makes a difference. But there it is.

However, one salient fact that I think is NOT in dispute is the following: these were not just banners waved by people in the stands at the game, or even banners displayed in an official place on the field. These banners actually had a function: when the home team takes the field, the players burst physically through the paper banners, ripping them. This dramatic entrance is part of the pageantry of the game. The banners are called "run-through banners." This YouTube video includes a little clip of the team running through one of the banners (At about 0:40):

In my view, understanding the banners' function makes it very clear that the school is playing a large role in selecting and amplifying this speech. Any student may be free to hold up any sign they choose in the stands, but only one banner is in effect chosen by the school for the specific purpose of being the screen through which the football team will run during their rush onto the field at the start of the game. That one banner is the banner at which everyone is staring as they anticipate the team's arrival.

I think a reasonable person would correctly assume that the school was endorsing the message on that banner, in the same way that a reasonable person would assume that bible quotes on team uniforms were "endorsed" by the school, even if the uniforms were donated privately and the quotes chosen by an individual student, selected by raffle. At some point, schools' efforts to attribute major parts of the official pageantry of a football game to "individual students" start to ring a little hollow.

Posted by: Joey | Oct 22, 2012 4:14:06 PM

Marty, thanks for the comment. Like you, I'm constrained in my post here by my lack of knowledge of the facts. The most I feel comfortable saying, and the place where I started, is that the Times editorial's description of Santa Fe is too sweeping.

For the most part, I take no issue with what you write in your comment. Students have the same rights to speak about religious matters as they do about non-religious matters. Schools themselves are slightly more constrained: there are some forms of religious speech they cannot engage in ("You shall love the Lord God with all your heart") even if they might be able to engage in some forms of non-religious speech ("Be cool--stay in school"). In some cases, the school is sufficiently implicated in student speech that that speech may fairly be attributed to it. Of course this could well be such a situation.

I'm not sure how things should come out in a particular set of circumstances, though, and perhaps you have a view. Say that the school said to cheerleaders, "We want our players to run through a banner at the beginning of each game. Go write what you want, as long as it doesn't involve George Carlin's seven dirty words." Would that be enough to create a reasonable perception of endorsement, or that this was the speech of the school? If there is an adequate firewall between the school and the student choices, would such a perception be reasonable?

On the public forum issue, if I recall correctly, the Texas legislation I referred to purports to create a "public forum" for student religious speech. I can't recall whether I go into it much in my article, but I'm dubious about how effective this move is, or whether it even makes sense in various situations.

Posted by: Paul Horwitz | Oct 22, 2012 2:04:54 PM

Paul: I know *nothing* about the facts of the case, so please take this with a healthy dose of salt: I assume that the banners here were designed to be the speech of the school's cheerleading *squad,* not that of any particular cheerleader(s). That squad, I would also assume, is an official school organization, designed, in fact, to "speak" for the school at football games and the like. Presumably it doesn't have the authority, for example, to cheer for the opponent's team, or to cheer for Obama or Romney. Its mandate is much more specific, and delimited, and it has to do with "representing" the school, in the common parlance.

To be sure, like on the school newspaper, the students on the squad are probably afforded considerable discretion, within limits, to choose how to accomplish the assigned ends. But presumably the school retains substantial control to preclude certain forms of speech (see Hazelwood, Fraser, et al.), and in that sense the cheerleaders do not "speak" in anything like (or analogous to) a public forum. Indeed, they probably have far, far less leeway to choose the speech of their choice than does, for instance, the outside speaker or valedictorian chosen to speak at graduation.

A nice rule of thumb to consider (not saying it's determinative; only that it should give serious pause): If a "Vote for Romney" banner in the same situation would be reasonably perceived to be the speech of the school -- or at least speech that would be reasonably perceived as endorsed by the school -- and if the school would (as I suspect) prohibit that banner, then wouldn't the school's similar restriction here at a minimum be permissible, if not required by the EC?

Posted by: Marty Lederman | Oct 22, 2012 12:25:25 PM

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