In a case now in its fourth year, The Texas Appellate Court of the Ninth Circuit in Beaumont ruled in favor of the plaintiff cheerleaders in the highly-publicized Kountze ISD Cheerleaders “Run-through Banners” case. In this case, after receiving a 2012 complaint from the Freedom from Religion Foundation, the district superintendent directed the high school cheerleaders to cease putting religiously-themed messages (including Bible verses) on the banners through which football players ran prior to the start of games.
The cheerleaders sued, and in 2013 received a temporary restraining order and ultimately a partial summary judgment ruling from the trial court that denied the district’s plea to the jurisdiction. After the state appellate court reversed the denial of the trial court’s plea to the jurisdiction in 2014, the cheerleaders appealed this reversal to the Texas Supreme Court. The state high court in 2016 ruled in favor of cheerleaders because the district’s cessation of its prohibition on the banners did not render the case moot, and remanded the case to the appellate court to again consider the district’s appeal of the denial of its plea to the jurisdiction.
So, in its late-September 2017 decision, the Ninth Circuit appellate court was asked to determine whether the trial court properly denied the school district’s plea to the jurisdiction. In affirming the trial court, the appellate court kept alive the cheerleaders’ suit against the district.
In affirming, the state appellate court determined whether the school district was entitled to sovereign and/or governmental immunity from the cheerleaders’ suit, observing that if the cheerleaders could plead that the messages on the banners were private student speech, they would overcome the district’s immunity defense, as “governmental immunity has been waived for such claims” (2017 Tex. App. LEXIS 9165 at *6). Thus, the court embarked on a lengthy analysis to determine whether the messages on the banners were government speech, entitled to no free speech protections; school-sponsored student speech, entitled to greater protections; or private student speech, entitled to the greatest protection. In holding that the messages on the banners were not government speech, the court employed the following three-part test (2017 Tex. App. LEXIS 9165 at *15-16):
“whether the [district] has historically used the medium of speech as conveying a message on the government’s behalf;
whether a reasonable observer would interpret the speech as conveying a message on the government’s behalf; and
whether the government retained control and final authority over the content of the message.”
Regarding the first part of this test, the court relied on the following facts to find in favor of the cheerleaders: the cheerleaders were not required to display banners at all; no school-district funds were expended to make the banners; the district’s logo was not part of the banners; the banners were made outside of school hours; and the cheerleaders, in spite of wearing school district uniforms, were participating “in an extracurricular or non-curriculum activity for which students receive no grade or [academic] credit” (2017 Tex. App. LEXIS 9165 at *16). Applying the second part of the test, the court again ruled in favor of the cheerleaders, finding that while their uniforms displayed the school logo, they were purchased with private funds; that the banners were unfurled only before the start of the game and only long enough for the players to run and tear through them; and that high school students could ascertain that the messages on the banners were private student speech. Regarding the third part of the test, the court again found for the cheerleaders, holding that the messages were student-initiated and student-led, that there was no pre-approval of the messages, and the only editorial control exercised by school officials was to make sure the messages were not lewd or indecent.
Next, the court held that the messages did not constitute school-sponsored student speech, i.e., student speech that might reasonably be viewed as bearing “the imprimatur of the school” (internal citations omitted), and which school officials can regulate if the restrictions are “reasonably related to legitimate pedagogical concerns” (Hazelwood v. Kuhlmeier, 484 U.S. 262, 273, 1988). Here, the court found that, unlike school-sponsored student speech that was fairly characterized as trying “‘to impart particular knowledge or skills to student participants and audiences’” (internal citations omitted), the messages on the banners were designed only to fire up the teams and those attending the football games, and that the messages were not part of a curricular activity.
Finally, the court found that the messages on the banners were student private speech. The court initially found that the pre-game ceremony was a non-public forum for student expression, on which school officials could impose reasonable student speech restrictions in line with U.S. Supreme Court precedent (i.e., Tinker v. Des Moines Cmty. Sch. Dist., 393 U.S. 503 , Bethel v. Fraser, 478 U.S. 675 ), and Morse v. Frederick, 551 U.S. 393 ). Here the court employed a primarily “Tinker” analysis to seemingly find that, because there was no evidence of a material and substantial interference with school activities based on the religious content of the banners, there was no need to regulate them under Tinker.
Accordingly, because the court found that the messages on the banners were private student speech, the students had sufficiently raised a free speech claim that waived the district’s immunity from suit.