Two weeks ago a Texas court issued a temporary injunction allowing the cheerleaders to display their banners for at least the remainder of the season. Free speech prevailed, reminding us of the well-established principle that students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.
People from all political persuasions should be celebrating this decision. Many are mistakenly arguing, however, that the outcome is incorrect because the Supreme Court struck down school-sponsored prayer at football games in the 2000 caseSanta Fe v. Doe. But Santa Fe recognized that “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.”
In Santa Fe, the court held that a school policy that created a majoritarian election on religion and explicitly encouraged prayer created government speech. Conversely, in this case, both Texas law and the school’s policies affirm that when students speak at school events, including football games, they are engaging in private speech and their views do not reflect the position of the school. Indeed, the policies at issue in Kountze create a forum for student speech and require the school district to remain neutral toward all viewpoints. Santa Fe involved government speech; Kountze involves private student speech.
The Kountze cheerleaders alone decide what message to place on their banners. The team is student-run, with school officials present only to monitor safety. Each week two cheerleaders take turns leading the team, including choosing whether to create banners and, if so, what messages they should bear. The supplies to create the banners are paid for with private funds, as are the cheerleaders’ uniforms, further demonstrating the private nature of their speech.
In Santa Fe, the court stated that: “By no means do [the Religion Clauses] impose a prohibition on all religious activity in our public schools. . . . Indeed, the common purpose of the Religion Clauses is to secure religious liberty.” When football players or cheerleaders are on the field in uniform, they do not become agents of the state. No one would argue that high school football players are prohibited from praying together. In the same manner, just because cheerleaders wear uniforms and are on school property does not mean that they become instruments of the school or that they must surrender their right to free speech.