Matthews v. Kountze Independent School District: An Outlier in a Sea of Establishment Clause Outliers Prepared for the 2018 Education Law Association

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1 1 Matthews v. Kountze Independent School District: An Outlier in a Sea of Establishment Clause Outliers Prepared for the 2018 Education Law Association Annual Conference Joe Dryden, J.D., Ed.D.

2 2 Background and Statement of the Facts According to the 2010 Census, Kountze, Texas is home to 2,123 residents composed of 70% Caucasian, 23% African-American, 5% Hispanic, 1% Asian with the remaining 1% being a combination of Native Americans, Filipinos, and Asian Indians. 1 Kountze is the County Seat of Hardin County which is located near the Big Thicket National Preserve approximately 50 miles west of the Texas Louisiana Border and 50 miles north of the Gulf of Mexico. 2 The primary industries are construction, healthcare, retail sales, manufacturing and administrative services, and hospitality. 3 Kountze is an exceptionally religious community as evidenced by the existence of 47 Christian-based places of worship listed by the chamber of commerce within the 3.9 square mile city boundaries. 4 Kountze ISD (KISD) served 1,166 students in 2017, 78.6% were White, 12.2% were African American, 5.9% were Hispanic, 2.1% were more than one race, and the remaining 1.1% were composed of Asian, American Indian, and Pacific Islander students. 5 An examination of the Kountze ISD Texas Academic Performance Report (TAPR) shows that the district met state accountability standards despite scoring slightly lower than the state averages on state 1 Dicennial Census of Population and Housing: by Decade. Available at: 2 Google Maps. Available at: ,13z/data=!3m1!4b1!4m5!3m4!1s0x b80fb1a5:0x3a0afe1909c6bf26!8m2!3 d !4d Statistical Atlas, Industries in Kountze Independent School District. Available at: 4 Places of Worship and Religious Organizations in Kountze, Tx. Chamber of Commerce.com. Available at: Texas Academic Performance Report, Kountze ISD. Available at: =0&single=N&title=2017+Texas+Academic+Performance+Reports&_program=perfrept.perfmast. sas&prgopt=2017%2ftapr%2ftapr.sas&ptype=p&level=district&search=district&namenum=koun tze&district=100903

3 3 accountability testing in virtually every grade and subject. 6 Graduation rates exceed state averages 7. For many years, the KISD cheerleading squad prepared run-through banners (RTBs) that are displayed before the start of football games. 8 Players run through the RTBs to a cheering crowd of students, parents, and guests as a part of school-sponsored extra-curricular event. 9 While the cheerleading squad creates the RTBs, the cheerleading sponsors, who are paid, review and approve the messages. 10 Before the beginning of the 2012 schools year, the cheerleaders decided to initiate the practice of including religious messages on the RTBs and did so at the first three games of the season. 11 On September 17, 2012, the former superintendent of KISD, Kevin Weldon, received a letter from the Freedom from Religion Foundation (FFRF) claiming that the practice constituted an Establishment Clause violation. 12 After consulting with the KISD s attorney, Superintendent Weldon informed the secondary campus principals that the RTBs could no longer include religious messages and from that point forward, district cheerleaders would be prohibited from including religious messages on the RTBs. 13 Procedural History On September 20, 2012, eleven parents of KISD cheerleaders filed an application for a temporary restraining order and a request for injunctive relief, on behalf of their minor children, claiming that the actions of Superintendent Weldon violated their childrens rights under the Texas Constitution and the Religious 6 Id. 7 Id. 8 Matthews v Kountze Independent School Dist., 482 S.W.3d 120 (Ct. App. Tex 2014). 9 Id. at Id. at Id. at Id. at Id. at 125.

4 4 Viewpoint Anti-Discrimination Act (RVAA). 14 KISD responded by filing a plea to the jurisdiction and The 356 th Judicial District Court in Hardin County, Texas granted the parent s application ordering KISD to cease and desist from preventing the cheerleaders of Kountze Independent School District from displaying banners or run throughs at sporting events and/or censoring the sentiments expressed thereon. 15 The school district was ordered to show cause as to why the temporary restraining order should not be made into a temporary injunction. 16 In October, after considering the defendant s motion for declaratory relief, their response to the plaintiff s request for a temporary injunction, and the plaintiff s reply and supplemental briefings, the state district court, in an abbreviated opinion, awarded the temporary injunction with little explanation stating simply that plaintiffs claims of constitutional injury present a substantial threat that irreparable injury would result if the temporary injunction [is] not issue[d]. 17 In response to community concerns, the KISD School Board adopted Resolution and Order No. 3 on April 8, 2013 which stated: [r]un-through banners, like other school banners displayed by the Cheerleader Squad as a part of their official activities, are the speech of KISD and are subject to the control and oversight of various school officials... the Board viewed the Bible verses featured on the RTBs as "fleeting expressions of community sentiment" and stated the 14 Plaintiffs' Reply in Support of Application for Temporary Injunction Coti MATTHEWS, et al., Plaintiffs, v. KOUNTZE INDEPENDENT SCHOOL DISTRICT et al., Defendants., 2012 WL (Tex.Dist.). 15 Matthews v Kountze Independent School Dist., No , 2012 WL (Tex.Dist. Sep. 20, 2012), at Id. 17 Matthews v Kountze Independent School Dist., No , 2012 WL (Tex.Dist. Oct. 18, 2012), at 1.

5 5 Establishment Clause does not require it to exclude such fleeting expressions merely because some of them express religious sentiments that are widely held within the KISD community. 18 In May of 2013, the 356 th Judicial Court granted the plaintiffs motion for summary judgment making the following findings: a) The evidence in this case confirms that religious messages expressed on run-through banners have not created, and will not create, an establishment of religion in the Kountze community, b) [t]he Kountze cheerleaders' banners that included religious messages and were displayed during the 2012 football season were constitutionally permissible, and c) neither the Establishment Clause nor any other law prohibits the cheerleaders from using religious-themed banners at school sporting events. Neither the Establishment Clause nor any other law requires Kountze I.S.D. to prohibit the inclusion of religious-themed banners at school sporting events. 19 KISD appealed the trial court s denial of their plea to the jurisdiction claiming that the revised policy regarding RTBs rendered the claims of the parents moot and the trial court, therefore, lacked subject-matter jurisdiction. 20 The State Court of Appeals agreed and reversed holding that the parent s claims were rendered moot by the adoption of a new district policy which allowed the cheerleaders to display their religious messages at school-sponsored events. 21 Furthermore, KISD made numerous judicial admissions that they would no longer restrict the contents of the RTBs solely due to any religious references Joe Dryden, Matthews v. Kountze ISD: The Establishment Clause Collides with the Religious Viewpoint Antidiscrimination Act on the Texas High School Football Gridiron. Presented at the 58 th annual Education Law Association conference, Denver Colorado, (November 2013). 19 Matthews v Kountze Independent School Dist., No , 2013 WL (Tex.Dist. May 08, 2013). 20 Id. Note 8 at Id. 22 Id. at 127.

6 6 Reasonable minds might conclude that the case and controversy was settled. The cheerleaders would no longer be prevented from including religious messages on the RTBs, but the parents were uncomfortable with the fact that the school claimed control over the messages on the RTBs as the parents asserted that the messages on the RTBs were the cheerleaders private speech. Retaining control meant that KISD could reinstitute the ban at a later date, post-litigation, so the parents filed a petition with the Texas Supreme Court asking for a review of KISD s interlocutory appeal. 23 The Texas Supreme Court reversed and remanded holding that the issue was not moot because KISD could reinstate the prohibition at any time. 24 The court distinguished other Texas cases dismissed as moot by noting that those respective courts required the defendants to admit that their prior policies were unconstitutional. 25 Simply changing the policy does not render a case and controversy moot. Other factors must make it absolutely clear that the [challenged conduct] could not reasonably be expected to recur. 26 Throughout this litigation, [KISD]... has continually defended not only the constitutionality of that prohibition but also its unfettered authority to restrict the content of the cheerleaders' banners including the apparent authority to do so based solely on their religious content. In fact, while the District has indicated it does not have any current intent or plan to reinstate that prohibition, the District has never expressed the position that it could not, and unconditionally would not, reinstate 23 Matthews, on behalf of M.M. v. Kountze Indep. Sch. Dist., 484 S.W.3d 416 (Tex. 2016). (The Texas Supreme Court will only entertain interlocutory appeals when there is a conflict between the holdings of state appeals courts. Here, other courts required the defendants to admit that their prior policy was unconstitutional. KISD made no such admission.) 24 Id. at Id. at 418. (See Lakey v. Taylor ex rel. Shearer, 278 S.W.3d 6, 12 (Tex.App. Austin 2008, no pet.); Bexar Metro. Water Dist. v. City of Bulverde, 234 S.W.3d 126, 131 (Tex.App. Austin 2007, no. pet.); Del Valle Indep. Sch. Dist. v. Lopez, 863 S.W.2d 507, 511 (Tex.App. Austin 1993, writ denied). 26 Id. at 418 (quoting Bexar Metro. Water Dist., 234 S.W.3d at 131.).

7 7 it. 27 The Texas Supreme Court never reached the question as to whether the messages on the RTBs were the students private speech or school-sponsored speech, nor did it determine if the review should focus on the prior or current KISD policy. It s holding was limited only the question as to whether the parent s claims were made moot by the adoption of the new policy cited supra. On Remand On remand, the state appeals court (SAC) began their review by analyzing whether it had subject matter jurisdiction over the dispute. The Civil Practice and Remedies Code allows an appeal of an interlocutory order in cases where lower courts allow or dismiss a plea to the jurisdiction by a government entity. 28 Those facts are present in the case at hand, so the SAC had jurisdiction. 29 Government Speech KISD argued that the speech on the RTBs was government speech and that they should be entitled to government immunity thereby stripping the trial court of subject matter jurisdiction and making their findings an advisory opinion. 30 The determination as to whether the speech in question is government speech depends on the degree of control exercised by the government. 31 To aide it s analysis, the court examined five cases which classified an individual s speech as government speech, none of which, however, involved student expression at school-sponsored events Id. at See: The Civil Practice and Remedies Code (a)(8). 29 Kountze Indep. Sch. Dist. v. Matthews on behalf of Matthews, No CV, 2017 WL , at *1 (Tex. App. Sept. 28, 2017). 30 Id. at 2.; See also; Pleasant Grove City v. Summum, 555 U.S. 460, 464 (2009). ( Government speech is not subject to constitutional scrutiny under the Free Speech Clause. ) 31 Id. at Pleasant Grove City v. Summum, 555 U.S. 460 (2009); Garcetti v. Ceballos, 547 U.S. 410 (2006); Nat'l Endowment for the Arts v. Finley, 524 U.S. 569 (1998); Johanns v. Livestock Mktg., Assoc., 544 U.S. 550 (2005); Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S.Ct (2015).

8 8 In Summum, members of a religious group sued the city of Pleasant Grove after city officials refused to display the Seven Aphorisms of Summum in a cityowned park despite that fact that eleven other monuments were displayed including the Ten Commandments. 33 The Supreme Court characterized the messages displayed in the park as government speech, and therefore, it was not subject to scrutiny under the Free Speech Clause. The Court in Summum applied a three-part test: a) whether the government has historically used the medium of speech as conveying a message on the government s behalf, b) whether a reasonable observer would interpret the speech as conveying a message on the government s behalf; and c) whether the government retained control and final authority over the content of the message. 34 The court examined Garcetti v. Ceballos, but Garcetti involved the speech of an adult public employee who was operating pursuant to his official paid duties. 35 A) There is no doubt that KISD has used the RTBs over the last several decades to convey messages of school spirit, good sportsmanship and to get the crowd and players excited. 36 If the purpose of the RTBs is not to convey a message then why are messages painted on the side facing the audience, or why are words used at all? Why not just have a blank piece of paper? What if the cheerleaders sold advertising on the RTBs to offset the cost of the supplies? Would the advertisers consider their words the conveyance of a message? I am willing to bet they would. The SAC even acknowledged that in 2012 the cheerleaders decided that positive expressions would be preferable to the derogatory messages previously seen on the RTBs such as: Scalp the Indians or 33 Pleasant Grove City v. Summum, 555 U.S. 460, 462 (2009). 34 Id. at Garcetti v. Ceballos, 547 U.S. 410 (2006). 36 Id. note 29 at 6.

9 9 Bury the Bobcats. 37 The court observed that the RTBs were hand-painted in the cheerleaders handwriting a fact which is largely irrelevant. The stories in school newspaper in Hazelwood were written by the students but were still considered school-sponsored speech. 38 The SAC also took notice of the fact that that the RTBs did not contain the school or district s name. While true, this point is de minimus because the cheerleader and players uniforms, as well as the scoreboard, are emblazoned with the school s name and logo. The SAC pointed out that no funds were used in making the banners, but the banners are displayed on a field paid for and maintained with state and local funds under the lights of a football stadium which also necessitates the expenditure of public funds. Furthermore, the cheerleading sponsors, although not teachers, are school employees who are paid a stipend and vested with the authority to review and approve the content of the banners to avoid the display of inappropriate messages. 39 If the RTBs were not used to convey a message then why would anyone need to make sure the messages on the RTBs were appropriate? B) Citing Board of Education of Westside Community Schools v. Mergens, 40 the SAC concluded that a reasonable person would not interpret the RTBs as a type of official publication that was conveying a message on behalf of the school. 41 Granted, the RTBs are not the type of official publication the equivalent of a district report card or board-adopted strategic plan, but the RTBs are intended to enhance school and community spirit not on behalf of the opponents, but on behalf of KISD. As pointed by the Texas Association of School Boards, [c]heerleaders are not selected to share their personal views on whatever 37 Id. note 29 at Hazelwood School Dist., v. Kuhlmier, 484 U.S. 260 (1988). 39 Id. note 29 at Bd. of Educ. of Westside Community Schools v. Mergens, 496 U.S. 226 (1990). 41 Id. note 29 at 6.

10 10 topics they see fit to the general public; they are selected to cheer for the school. 42 Furthermore, reliance on Mergens is misplaced. The cheerleaders are not ordinary students who decide to form a student-led club. They serve as representatives and mouthpieces for KISD. 43 Cheerleading is also substantially different from other student-led clubs that meet periodically during noninstructional times to pursue common hobbies or interests. Cheerleaders in KISD must maintain a minimum grade average of 70 in each academic class, exhibit the ability to get along with teachers and other students, have an athletic physical, comply with the student code of conduct, and have good teacher recommendations. 44 Cheerleaders must avoid behavior which reflects negatively on the school, must show good sportsmanship and avoid pouting, frowning or non-participation. They must be leaders in the school, set good examples, and be friendly at all times. 45 In addition to playing a prominent role at football games, cheerleaders make special appearances, in their uniforms, on behalf of the football team and the school. For example, the cheerleaders lead students in cheers during pep rally assemblies, which typically take place during the school day. 46 Cheerleaders perform in the school s homecoming parade and are dismissed from school to visit the district s intermediate and elementary schools. They represent the school in multiple community contexts, and their appearance is tightly controlled. The cheerleading sponsors enforce... behavioral standards and may impose discipline... if squad members fail to abide by the squad constitution and the cheerleader rules. 47 The paid sponsors monitor the cheerleader's dress and 42 KOUNTZE INDEPENDENT SCHOOL DISTRICT, Petitioner, v. Coti MATTHEWS, On Behalf of Her Minor Child, M.M., et al., Respondents., 2018 WL (Tex.), 6 43 Doe v. Silsbee Indep. Sch. Dist., 402 Fed.Appx. 852, 855 (5th Cir. 2010). 44 Id. note 42 at Id. at Id. at Id. at 16.

11 11 grooming habits, which has been classified by the Fifth Circuit as a form of expression. 48 The sponsors make sure the cheerleaders do not modify their uniforms and decide when and where the uniforms can be worn. They have final approval over dance choreography and will intervene if they determine that certain moves are inappropriate. Clearly, voluntary membership on the cheerleading squad comes with higher expectations and additional regulations not placed on an ordinary student. Serving in the coveted position of a cheerleader brings with it substantial limits on behavior, appearance, and speech. Ironically, in 2010, the same state district court held that cheerleaders act as representatives and spokespersons for their school when engaged in official squad activities. 49 If cheerleaders act as representatives and spokespersons for their school while participating in official squad activities, then the messages communicated at those activities unquestionably represent schools-sponsored speech. Additional facts which would lead the reasonable person to conclude the messages were being displayed on the government s behalf include the fact that the messages are delivered at a school-sponsored event where attendance for many students is compulsory. In many towns in Texas, especially small towns, with the possible exception of graduation, football games may represent the most significant and widely attended school events. Football games, form the plays to the cheers to the half-time performance, are carefully choreographed and practiced. The reasonable person possessing all the necessary facts and knowledge could not but conclude that the RTBs were conveying a message on the district s behalf. As observed by the Texas Association of School Boards, if a 48 See Canady v. Bossier Parish, 230 F.3d 437 (5th Cir. 2001). 49 Id. note 43. (Silsbee Texas is located 10 miles away from Kountze, Texas)

12 12 parent feels that the messages displayed on the RTBs are inappropriate, who will they contact to complain, the cheerleaders or school officials? 50 C) The SAC limited their application of the third part of the Summum test, to the practice and policies in existence before Superintendent Weldon issued the prohibition on the display of religious messages on the RTBs and before the passage of Resolution and Order No The SAC asked: how much control did KISD exercise over the messages on the RTBs and did they have final authority? The SAC recognized that there was no pre-approved script or message; however, the paid cheerleader sponsors reviewed and approved the RTBs once completed and would not permit the display of inappropriate messages. 52 The SAC concluded that the facts were insufficient to classify the messages as government speech because KISD was not exercising the same degree of control as that seen in Summum or Walker where Texas exercised control over the appearance and images on the state s personalized license plates. 53 But neither Summum nor Walker involved the special characteristics of the school setting. The court did recognize that school officials can prohibit speech that is substantially disruptive, 54 lewd, vulgar, or obscene 55 or messages that advocate drug use, 56 but this leaves a huge area where offensive, divisive and inappropriate messages could be displayed that are not covered by Tinker, Bethel or Morse. What if a cheerleading squad wanted to bring attention to the evils of abortion and call out a classmate who recently terminated a pregnancy, so they decided to paint Abortion is Murder, right Susie? What if they wanted to make 50 KOUNTZE INDEPENDENT SCHOOL DISTRICT, Petitioner, v. Coti MATTHEWS, On Behalf of Her Minor Child, M.M., et al., Respondents., 2018 WL (Tex.), 6 51 Id. note 30 at Id. note 30 at Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S.Ct (2015). 54 Tinker v. Des Moines, 393 U.S. 503 (1969). 55 Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986). 56 Morse v. Frederick, 551 U.S. 393 (2007).

13 13 a political statement about illegal immigration and painted the message: Build the Wall. Relying only on Tinker, Bethel, and Morse would not be enough to prohibit these controversial and divisive topics from being displayed on a large RTBs at a high school football game. In limiting their analysis to the degree of control exercised by KISD prior to the letter from Superintendent Weldon prohibiting the religious messages on the RTBS, the SAC tried to argue that KISD never exercised any direct control over the messages thereby undermining their government-speech claim. Coincidentally, the records in Summum and Walker do not identify any prior occasion when the city of Pleasant Grove, California or the State of Texas had ever rejected specific messages. 57 Nevertheless, numerous facts demonstrate that KISD retained tight control over the messages disseminated at its high school football games. The field is surrounded by a chain-link fence which is off limits to spectators with gates that are guarded by school officials who limit access to players, cheerleaders and band members. 58 No other students or individuals are allowed on the field to display their banners or messages. 59 It is probably fair to assume that anyone who gains access to the field without permission would be subject to criminal prosecution for trespass. School-Sponsored Speech The pleadings and briefs of the parties seem to argue that the messages displayed are either government or private speech, but this dichotomous either-or 57 Brief of Amicus Curiae Texas Association of School Boards Legal Assistance Fund in Support of Petitioner Kountze Independent School District. KOUNTZE INDEPENDENT SCHOOL DISTRICT, Petitioner, v. Coti MATTHEWS, On Behalf of Her Minor Child, M.M., et al., Respondents., 2018 WL (Tex.). 58 Coti MATTHEWS, on behalf of her minor child, Macy Matthews, et al., Petitioners, v. KOUNTZE INDEPENDENT SCHOOL DISTRICT, Respondent., 2015 WL (Tex.), Id. at 27.

14 14 approach ignores the reality that there are three recognized categories of speech: government speech, private speech, and school-sponsored speech. 60 One could argue that government speech is aligned with the messages displayed by local, state, or federal agencies which have maintained their facilities as closed forums. School-sponsored speech would include messages disseminated under the auspices of the school or supervision of school employees such as student articles in school newspapers, 61 messages in school yearbooks, 62 theatrical performances performed by students in the school s drama class, 63 tile painting, 64 valedictorian speeches, 65 murals painted on temporary plywood as a part of school beautification project, 66 and yes, in the opinion of this author, even RTBs at school football games. The seminal case involving school-sponsored speech is Hazelwood v. Kuhlmeier where Justice White wrote: school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences Pounds v. Katy Indep. Sch. Dist., 730 F.Supp.2d 636, 642 (S.D. Tex. 2010). 61 Hazelwood School Dist., v. Kuhlmier, 484 U.S. 260 (1988). 62 Planned Parenthood of Southern Nevada, Inc. v. Clark County School Dist., 941 F.2d 817 (9 th Cir. 1991). 63 Boring v Buncomb 64 Fleming v. Jefferson County School Dist. R-1, 298 F.3d 918 (10 th Cir. 2002) 65 Corder v. Lewis Palmer School Dist. No. 38, 566 F.3d 1219 (10 th Cir. 2009). 66 Bannon v. School Dist. of Palm Beach County, 387 F.3d 1208 (11 th Cir. 2004). 67 Id. note 38 at 271.

15 15 This article has already addressed whether the public might perceive that the messages bear the imprimatur of the school arguing in the affirmative. The second component asks us to determine whether cheerleading is part of the school curriculum. The attorneys for the cheerleaders point out that their clients do not receive credit toward graduation, receive no grades, and all practices take place after school. 68 Therefore, cheerleading is not a part of the curriculum. This assertion, however, ignores other factors suggesting the opposite. First and foremost, cheerleading, football, and marching band can all be used as courses which satisfy the PE credit required for graduation in Texas. 69 The SAC ruled that football and cheerleading are non-curriculum or extracurricular activities and, while the student-athletes may certainly gain valuable life lessons from engaging in the team sports, the activities are not designed specifically to impart some specific knowledge or skills to the students in a pedagogical sense. 70 Hazelwood did not place the additional vague qualifier that the knowledge and skills had to align with a pedagogic sense, only that the activities are designed to impart particular knowledge and skills to student participant and audiences. Admittedly the RTBs do not contain math formulas or Shakespearean quotes, but the Bible is worthy of study for its historic and literary purposes, 71 and Bible study classes are authorized to be taught by the Texas State Board of Education. 72 Furthermore, I would suggest some degree of caution before telling a cheerleader that to be such requires no knowledge or skill. Regina Bailey, former 68 Id. at See 19 TEX. ADMIN. CODE (b)(7)(B)(i)&(C). 70 Kountze Indep. Sch. Dist. v. Matthews on behalf of Matthews, No CV, 2017 WL , at *12 (Tex. App. Sept. 28, 2017), review denied (Aug. 31, 2018). 71 School District of Abington TP., Pa. v. Schempp, 374 U.S. 203, 225 (1963). 72 (Texas Education Code Sec grants the school district s the authority to offer elective courses on the Old and New Testament and Sec mandates that all districts include religious literature as a part of its enrichment curriculum)

16 16 Washington Redskins cheerleader who works as an emergency medical physician and Lawyer described what she learned as a cheerleader. I developed a great sense of self-confidence and fearlessness; after dancing in front of more than 70,000 screaming fans, there is not too much that makes me nervous. I honed my public speaking and communication skills; I did many appearances and talked with people from all walks of life. And I use all of those skills today. 73 Some school districts in Texas publish cheerleader manuals outlining the knowledge and skills that must be learned before they are allowed to cheer, and these manuals are classified as curricular materials. 74 Finally, the attorneys for the cheerleaders assert that the use of Hazelwood as case precedent fails because the cheerleading sponsors are not faculty members. The authority to supervise of school-sponsored speech is not limited to faculty members only. Surely, school administrators retain the authority to regulate school-sponsored speech yet they are not classified as members of the faculty. The same can be said of paid employees (cheerleading sponsors) who must follow job related requirements including but not limited to reviewing and approving the contents of the RTBs as alluded to supra. The Court in Hazelwood suggested the restriction on school-sponsored speech must be reasonably related to legitimate pedagogic concerns, but pedagogic was not defined. Subsequent cases, however, have found legitimate pedagogic concerns in cases involving the distribution of candy canes containing religious messages to prevent other students from being offended, 75 and in ordering the removal of religious murals to avoid possible disruptions caused by 73 Regina Bailey, Use Cheerleading as a Bridge to Other Careers, New York Times, (May 1, 2014) Curry v. Hensiner, 513 F.3d 570, 578 (6 th Cir. 2008).

17 17 potentially controversy material. 76 The religious messages on the RTBs at KISD football games create equivalent pedagogic concerns. The SAC relied mostly on Fleming, a case involving the aftermath of the Columbine shooting where school officials decided to allow students to design tiles which were permanently affixed to the building to ease the transition back into the school setting. 77 There the Tenth Circuit held that the tiles represented school-sponsored speech. The SAC used the facts of Fleming to build a fragile and somewhat illusory distinction, primarily the fact that tiles were permanent while the RTBs are fleeting. Yet, the duration of the constitutional violation is of little if any significance as the Supreme Court has held, it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment... [because] the breach of neutrality that is today a trickling stream may all too soon become a raging torrent. 78 Private Speech The SAC relied upon Tinker to proffer its interpretation of private speech, but the cases are factually juxtaposed. In Tinker, the wearing of the black armbands represented the expressive acts of individual students who did not represent the school in any capacity and who displayed their messages without the assistance or promotion of the school. 79 In Kountze, the RTBs represented the expressions of the school s cheerleading squad which displayed the message at a carefully orchestrated carefully controlled school-sponsored event. If a student or even a group of students, not a part of any officially recognized or sponsored school group, held up religious signs in the stands during a football game, such would be the equivalent of Mary Beth Tinker s black armband. 76 Id, note 66 at Id. note 64 at Id. note 71 at Id. note 54 at 504.

18 18 Governor Greg Abbott and the Religious Viewpoint Anti-Discrimination Act Before the hearing on the request for a temporary injunction, the state Attorney General and current Governor of Texas, Greg Abbott, sent a letter to the defendants citing the Religious Viewpoint Anti-Discrimination Act (RVAA) which mandates that all school districts in Texas treat a student s voluntary expression of a religious viewpoint in the same manner as the district treats a student s voluntary expression of a secular viewpoint. 80 In the opinion of this author, the RVAA is a set of constitutionally questionable statutes designed to circumvent prior Supreme Court decisions limiting religious activities at school and school-sponsored events. 81 Some sections of the RVAA simply codify existing student Free Exercise rights such as protecting students who include relevant religious references in class assignments, 82 or the right of students to organize non-curricular religious student groups. 83 Other sections, however, appear to tread on unconstitutional footing. Section of the Texas Education Code (TEC) mandates that a school district shall adopt a policy, which must include the establishment of a limited public forum for student speakers at all school events at which a student is to publicly speak. 84 Does the state have the authority to force school districts to relinquish control over by the messages that are displayed or disseminated at school-sponsored events? This is a critical question as the attorneys for the cheerleaders argued that Kountze High School football games are a limited public forum due to the fact that KISD adopted the model policy recommended through the RVAA. 85 The model policy mandates that a school district must create a 80 TEC Joe Dryden, The Religious Viewpoint Anti-Discrimination Act: Using Students as Surrogates to Subjugate the Establishment Clause. 82 Miss. L.J. 127 (2013). 82 TEC (Article IV: Religious Expression in Class Assignments). 83 TEC (Article V: Freedom to Organijze Religious Groups and Organizations). 84 TEC (a)(1) (mandated limited-public forum). 85 TEC

19 19 limited public forum for student speakers at all school events at which a student is to publicly speak. 86 The model policy also mandates that student speakers shall introduce: (1) football games; (2) any other athletic events designated by the district; (3) opening announcements and greetings for the school day; and (4) any additional events designated by the district, which may include, without limitation, assemblies, and pep rallies." 87 Furthermore, the RVAA mandates that school districts must provide a method based upon neutral criteria for the selection of student speakers at school events and graduation ceremonies. 88 The characteristics of a high school football game where access to the field is strictly limited to only certain students and adults lie counter to the open, mostly indiscriminate use of school facilities by multiple student-led organizations which is characteristic of the limited public forum envisioned by the Court in Mergens. The SAC even agreed and held that there was nothing in the record to indicate that KISD opened the football field up to indiscriminate use and concluded that the football field was not a limited public forum. 89 In so doing, the field then by default must be a closed forum over which the government agency retains control. As one can see, the RVAA mandates that school districts take affirmative steps not only to protect the dissemination of religious viewpoints in class assignment and voluntary student expression but to facilitate the dissemination of religious viewpoints by providing the forum at almost every school event. Protecting religious references by students in class assignments and voluntary religious student organization is a reflection of equality and neutrality. Forcing schools to allow religious exercises to be disseminated at school-sponsored events 86 TEC (Article I: Student Expression of religious Viewpoints). 87 TEC (Article II: Student Speakers at Non-Graduation Events). 88 TEC (a)(2). 89 Id note 29 at 13.

20 20 to a captive audience of children is the antithesis of neutrality; it is sponsorship, endorsement, and it is using the state s power to advance religion. 90 Furthermore, the limited public forum mandated by the adoption of the model policy covers students who speak publicly at school events. This would be analogous to the student who performs a Christian song at a talent show, not to student groups who represent the school while delivering district approved messages. Petition for Review Denied After losing at the appeals court level, KISD filed a petition for review with the Texas Supreme Court renewing their argument that the case was moot and, in the alternative that the decision of the SAC contained errors of law which were in direct conflict with Doe v. Silsbee. 91 Their petition was denied. Conclusion While students do not leave their constitutional rights at the schoolhouse gate, 92 the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings, 93 and must be applied in light of the special characteristics of the school environment. 94 This means that we cannot treat schools exactly like municipalities 95 or students exactly like public employees. 96 Courts have consistently understood that schools are special places 97 where school officials are entrusted with carrying out perhaps the most important function of state and local governments. 98 As a result, we have 90 Id. note KOUNTZE INDEPENDENT SCHOOL DISTRICT, Petitioner, v. Coti MATTHEWS, On Behalf of Her Minor Child Macy Matthews, et al., Respondents., 2018 WL (Tex.), xvi 92 Id. note 54 at Id. note 55 at Id. note 38 at Id. note Id. note New Jersey v. T.L.O., 469 U.S. 325 (1985). 98 Brown v. Bd. of Educ., 347 U.S. 493 (1954).

21 21 consistently seen school officials vested with additional authority beyond that afforded to city officials or public employers. 99 The Fifth Circuit has explained that when educators encounter student religious speech at school, they must maintain the delicate balance of the First Amendment and the general prohibition against viewpoint discrimination, opposite the amorphous boundaries of the Establishment Clause. How can school officials protect a child s Free Exercise rights within the school setting without running afoul of the Establishment Clause? How can we protect a child s expression rights while providing school officials with the authority to control the information disseminated at school or school-sponsored events? Clarence Thomas, in a dissenting opinion attached to a denial of certiorari, described Establishment Clause jurisprudence as incapable of coherent explanation 100 Indeed there are several examples where a specific Establishment Clause holding has an exact and opposite holding. 101 Mathews v. 99 See e.g. Id. note 97. (The Supreme Court established a lower standard of suspicion needed before school officials can conduct student seizures and searches than that needed by law enforcement officials.) Id. note 81 at 137. (Compare Lynch v. Donnelly, 465 U.S. 668, (1984) (the display of a crèche satisfied both the modified Lemon/Endorsement Test), with County of Allegheny v.american Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573 (1989) (the display of a crèche failed the Lemon/endorsement test), compare Van Orden v. Perry, 545 U.S. 677 (2005) (electing not to use the Lemon/Endorsement Test in ruling that a display of Ten Commandments on the grounds of the Texas State Capital did not violate the Establishment Clause), with McCreary Cnty. v. ACLU of Ky. 545 U.S. 844 (2005) (electing to use the Lemon/Endorsement Test to hold that a display of the Ten Commandments in a courthouse to be unconstitutional). Compare Jones v. Clear Creek ISD, 977 F.2d 963 (5th Cir. 1992) (holding nonsectarian non-proseltyzing prayer delivered by an elected member of the senior class without school approval, sponsorship or oversight was not an Establishment Clause violation), with ACLU v. Black Horse Pike Regional Bd. of Educ., 84 F.3d 1471 (3d Cir. N.J. 1996), and Doe v. Madison Sch. Dist. No. 321, 147 F.3d 832 (9th Cir. Idaho 1998) (both holding that the same approach that was approved by the Fifth Circuit in Clear Creek was a violation of the Establishment Clause). Compare Walz v. Egg Harbor Township Bd. of Educ., 343 F.3d 271 (3d Cir. 2003) (holding that a school's restrictions on elementary school student's distribution of pencils containing a religious message during classroom holiday parties did not violate student's First Amendment rights. ) with Morgan v.

22 22 Kountze ISD represents another example of an outlier in a sea of outliers. Had this case been tried in federal court, the outcome probably would be different, because federal judges are appointed not elected, and are, therefore, in theory, not subject to political pressure. The analysis of the SAC seemed almost tortured as it worked to construct an opinion which would inappropriately characterize the cheerleaders speech as private. While serving as a cheerleader, students represent their school, and as such, their expressions are far more analogous to schoolsponsored even government speech than they are private speech. When cheerleaders put on their uniforms and perform at a school-sponsored function they are not acting as private citizens; they are acting as representatives of the school. What started out as an Establishment Clause case, 102 morphed into a forum analysis case 103 and the outcome raises more questions than it answers. The fact that the SAC held that the football field is not a limited public forum, is in direct conflict with the RVAA and school officials are left with substantially limited authority over the messages disseminated at school-sponsored events. What will school officials do when other groups of students in the band, or on the teams decide to make a collective statement on a controversial topic? While individual students are free to make controversial statements when acting in their own capacity, doing so as a member of a group that represents the school in a closed forum at a school-sponsored event is far from the equivalent. Swanson, 659 F.3d 359 (5th Cir. 2011) (holding that virtually identical restrictions violated the Constitution under the First Amendment.) 102 Id. note Id. note 29.