Faith Meets Football and a Legal Dispute Ensues

KOUNTZE, Texas — There is a new angle to the usual hometown high school football pride on display in the store windows and marquees of this East Texas town.

Supporters still urge their Lions on to victory. But there are also messages of support for the cheerleaders in particular and the Christian faith in general — and occasionally, of scorn for the Kountze school district, which ordered the girls to stop holding banners bearing Bible verses during athletic events last month.

For the moment, the rule is on hold. At the start of a recent home football game, the team charged onto the field through a banner painted with the words of Hebrews 12:1. A day earlier, a state judge extended a temporary restraining order stopping the district from enforcing the ban.

Within the 36 hours before they showed up for the Friday night game, the cheerleaders had appeared on Good Morning America, Skyped with Gov. Rick Perry and taken the stand in the courtroom to plead their national headline-grabbing case. 

Meanwhile the town has become the latest setting in a string of lawsuits over where students' rights to religious expression end and the constraints on Texas public schools as governmental entities begin. The situation in Kountze — which has the district caught between the advice of its own lawyers and Texas Attorney General Greg Abbott — shows the fine line administrators must walk as they try to follow the law amid fiercely held beliefs on both sides. 

"No matter what, somebody is going to sue you," said Tom Brandt, a Dallas lawyer who has represented schools, now including Kountze, in First Amendment cases for two decades.

Soon after the banners first appeared on the football field, the district received a letter from the national Freedom From Religion Foundation saying it was violating constitutional doctrine. School officials ended the practice after consulting with two different attorneys and receiving the same advice, said Brandt.

The cheerleaders got their own lawyers through the Liberty Institute, a Plano-based conservative legal foundation. They also got Abbott's attention, who wrote a public letter saying that the district had received an “erroneous” legal recommendation and that his office stood ready to support the cheerleaders’ religious liberties.

The dispute in Kountze comes down to a single question: whether the cheerleaders were representing the school when they held the banners. Their lawyers, along with the attorney general, say it is clear they were acting as individuals. The squad came up with the idea, they say, bought the supplies for the banners with their own money and made them off campus.

For others, the matter is not so easily settled. They point to a 2000 U.S. Supreme Court decision, a case that originated in an East Texas town two hours south of Kountze. Santa Fe ISD v. Doe defined the boundary between student and school-sponsored speech when it outlawed student-led prayer over the loudspeakers at football games. It said the district’s policy amounted to government endorsement of religion, a violation of the First Amendment’s establishment clause.

The same would be true if the Kountze cheerleaders were allowed to proceed, said Charles Haynes, the director at the Newseum’s Religious Freedom Education Project.

 "If the cheerleaders aren't representing the school, then who are they?” said Haynes, who also advises school districts across the country on their religious expression policies. “It would be like saying that the football team doesn’t represent the school, they are just individual students just coming on the field and are free to do what they want to do.”

In an interview, Abbott said there was no ambiguity in the law on the issue of religious expression in schools. He attributed any confusion about its application among school districts to the manipulation of politically motivated organizations like the Freedom From Religion Foundation.

"The backdrop is that the Kountze battle is part of a larger war that we are defending against outside atheist groups trying to bully and steamroll school districts," said Abbott, a Republican widely expected to run for governor who successfully argued before the U.S. Supreme Court in 2005 to allow a monument displaying the Ten Commandments to stand at the Texas Capitol.

At the recent Kountze High game, people in the stands seemed to share that opinion. They said the uproar was the result of outsiders meddling in the town’s affairs — like the handful of protesters who traveled from nearby towns to hold signs in favor of keeping religion out of schools.

“All our kids go to church, they support it,” said Tiffany Clemons, as she stood with two other mothers of high school students near the sidelines during halftime. “And it’s encouraging kids who don’t go to church, to go to church.”

Sixteen-year-old Cody Merchant, a sophomore at Kountze High, said students just wanted to do something “inspiring for our boys.”

“It wasn't supposed to blow up like this,” he said. “This is a Christian town, mostly. We didn't think it would hurt anybody.”

Partly in an attempt to prevent situations like the one in Kountze, the Texas Legislature passed the Religious Views Anti-Discrimination Act in 2007. It included a requirement that districts adopt disclaimers that separated the views of student speakers at school-sponsored events from those of the school as a way of clarifying the law after the Santa Fe decision.

Since then, two major cases have tested the application of the state law, one of only a few similar statutes in the nation, In February, a San Antonio-area district reached an agreement with the family of an agnostic student who accused Medina Valley High School of frequently mixing prayer with school events. When a federal district court judge initially banned student-led prayer at the school’s graduation ceremony, an appeals court overturned the ban pending the outcome of the lawsuit.

Before the case was decided in court, the parties made a deal where the district agreed that its employees would not pray with students, proselytize or display religious artifacts.

In 2007, parents and students who objected to prayer at graduation sued over the Round Rock district’s policy requiring student elections to determine whether to include prayer as a part of the ceremonies. Federal district court judge Sam Sparks said that the state statute did not protect the district’s policy, but he declined to weigh in further on the new law’s constitutionality.

He did offer this footnote: “The Court doubts whether the new statute will do much to resolve the issue of prayers at graduations, but expects the new legislation will be quite effective at keeping attorneys in fees for the foreseeable future.”