Cheering free speech
By Jeffrey Mateer & Erin Leu
Published: Monday, November 5, 2012, 8:53 p.m.
Updated: Tuesday, February 19, 2013
Cheerleaders in Kountze, Texas, recently learned an invaluable lesson about the Constitution and the importance of individual expression without government censorship. Ironically, it's a lesson they had to watch a court teach their school district.
Controversy arose this fall when the cheerleaders at Kountze High School decided to model good sportsmanship by replacing the often-violent messages on their banners, such as “Scalp the Indians,” with encouraging religious messages. The only complaints came from an anti-religion advocacy group more than 1,000 miles away. In response, the Kountze superintendent issued an unlawful directive banning all such religious speech.
The cheerleaders sued their school district to preserve their rights to free speech and religious expression. 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 case Santa 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, 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.
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.
High school students' rights to free speech should be robustly protected. These students are nearly adults; they are about to enter college, military service or the workforce. Schools should be teaching students about the First Amendment and the free marketplace of ideas, including that other individuals may advocate for messages with which they disagree, instead of censoring speech that some might find offensive. Otherwise, our schools do a great disservice to students and fail to prepare them to be citizens of our free society.
Nonetheless, the character of the Kountze cheerleaders should give us hope for the future. With young adults like these ready to respectfully stand for our Constitution, our freedoms are more secure.
Jeffrey Mateer is general counsel of Liberty Institute, a national legal organization that seeks to defend and restore religious liberty. Erin Leu, a constitutional attorney at Liberty Institute, represents the Kountze cheerleaders in Matthews v. Kountze I.S.D.
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This self-serving column is misleading and wrong at a number of levels. The complaint about the prayer banners came from a student at the school, not an outside group. More importantly, the judge in this case decided nothing about free speech and instead just punted the decision by offering a temporary injunction, so he didn’t have to decide. The wheels of justice move slowly and the full trial won’t be until June, when the banners will not doubt be declared unconstitutional. The Liberty Institute has no respect for the separation of church and state and wants to see state-sponsored religion in every facet of our lives.