Texas Supreme Court Reopens Cheerleader Banner Case

In January 2016, the Texas Supreme Court issued the latest decision in the ongoing Kountze ISD cheerleader banner case, holding that a Kountze ISD board of education resolution did not render the case moot. The case began in fall 2012, when the school district informed the cheerleaders that they could not display religiously-themed “run through” banners at football games. Based on the district’s directive, the cheerleaders and their parents sued the school district for violating the cheerleaders’ rights under the free speech and worship clauses of the Texas Constitution. After the cheerleaders received a temporary injunction, the school district subsequently adopted a resolution and order which stated, in relevant part, “the District is ‘not required to prohibit messages on school banners… That display leading expressions of community sentiment solely because the source or origin of such message is religious,’ but ‘retains the right to restrict the content of school banners’” (internal citations omitted). Since that time, the school district has not retreated from this resolution. However, based on the resolution, the district filed a plea to the jurisdiction, asserting that this resolution rendered the controversy moot. After a trial court denied the district’s plea, a state intermediate appellate court reversed in part, ruling that the district’s resolution and order above, and the district’s voluntary discontinuance of the prohibition against the banners, rendered the free speech and worship claims moot. The cheerleaders appealed this adverse order.

The Texas Supreme Court reversed and remanded to the appellate court for further proceedings. After determining that it had jurisdiction over the claim, the Court essentially held that it could not be certain that the district’s voluntary cessation of the prohibition could not be lifted in the future, thus rendering the case to remain a live controversy. Confining its decision to the district’s prohibition on the banners, and not necessarily whether the district still considers the messages on the banners “government speech,” the court opined that the district has not retreated from its original position on the banners:

Throughout this litigation, the District 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 it. The District's stance is a significant factor in the mootness analysis, and one which prevents its mootness argument from carrying much weight (internal citation omitted).

Thus, finding that the district could “easily” reinstate its original prohibition on the religiously-themed banners, the Texas Supreme Court opened the case back up for further proceedings.

Matthews v. Kountze Indep. Sch. Dist., 2016 Tex. LEXIS 95 (Tex. 2016).

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