Legal Analysis and Commentary from Justia

The Establishment Clause and the Free Speech Clause in the Context of the Texas High School Cheerleader Religious Banner Dispute

In the space below, we explore some very interesting and complex First Amendment issues that are implicated in a recent lawsuit in Texas. The suit was brought by a group of public high school (Kuntze High School) cheerleaders against the school district that told them to stop displaying religious-themed banners bearing bible verses and proclaiming things like “If G-d is for us, Who Can Be Against Us?” at football games.  The district barred the religious banners, through which the football players had run as they came onto the field, after complaints by The Freedom From Religion Foundation that the practice of displaying such banners at football games of a public high school violates the Establishment Clause of the First Amendment.

The cheerleaders who filed suit seeking to continue the practice claim not only that the Establishment Clause does not forbid what they are doing, but also that that they have a First Amendment right themselves, under the Free Speech Clause, to continue to display the banners.  The case is set for trial next year, but in the meantime, a Texas state court judge last month granted preliminary relief in favor of the cheerleaders, directing the school district to permit the cheerleaders to display the banners, because of his view that the cheerleaders will likely prevail on their claims when the case is fully resolved.  As we explain below, we think—in light of the facts that are alleged by the cheerleaders in their Complaint—that under existing Supreme Court case law, both the Establishment Clause and the Free Speech Clause of the First Amendment cut against the cheerleaders in this case.  (We should make clear that although some of the current Justices might disagree with the case law currently on the books, we analyze the cheerleaders’ dispute under current doctrine that is binding on lower courts and litigants.)

The Establishment Clause Analysis

Our starting point is that if the school officials themselves had decided—or had directed the cheerleaders—to use banners that included religious messages, this would violate the Establishment Clause.  It seems pretty clear under current case law that such state action would be unconstitutional.

But the cheerleaders (supported by positions adopted by Governor Rick Perry and the Texas Attorney General) argue that this situation is different, because the banners constitute private speech on behalf of the cheerleaders that is not attributed to the school.  Under the selection procedures used by Kuntze High School, cheerleaders are not selected by school officials, but rather are chosen, after tryouts, by a panel of (Lamar) University cheerleaders.

According to the allegations in the Complaint, Kuntze cheerleaders decide what goes on the banners; there is no control exercised by school employees over the content of the displays.  Moreover, the banners are paid for by cheerleaders, using money that comes from private sources, rather than public school funding.  And the school district regulations identify activities such as banner displays at football games as a limited public forum, suggesting that the school is permitting individual students to speak, but not associating itself with the messages students express.

Even in light of these facts, we think the cheerleaders’ display of bible-verse-bearing banners raises serious Establishment Clause problems.  A high school football games is a quintessential traditional school-sponsored activity, and providing banners for the players to run through is a part of that school-sponsored activity.  For that reason, to any objective outside observer, the cheerleaders and the banners they display bear the imprimatur of the school.  In a case (Hazelwood) permitting public high school officials to censor high school newspaper articles—even though the articles bore the bylines of individual student authors—the Supreme Court reasoned that school-sponsored activities implicate government promotion of speech, rather than just the toleration of speech.  As a result, even if the school disclaims any approval of a student’s message, the overall public imprimatur remains.

Putting a disclaimer on the school newspaper doesn’t change its status as a school-sponsored activity any more than a one-paragraph disclaimer can transform high school football games from school-sponsored activities into private events.  Although the high school newspaper could be considered to be part of the school’s curriculum, which creates an even greater imprimatur of school support– and football games are less easily characterized as part of the school curriculum—we think the analogy has some force.

What about the fact that the school does not pay for the banners?  We think that under existing case law, the private nature of the funding of religious displays does not necessarily control the Establishment Clause analysis. The key point is that the religious message is displayed on public property during a school-sponsored event, a football game.  Cases involving the prominent display on public property of privately created nativity scenes (such as the Allegheny County case) demonstrate that private religious displays, standing alone on public property, can violate the Establishment Clause.  Given the sensitivity in the case law to religious coercion and endorsement in the context of public schools, the possibility of an Establishment Clause violation might be even stronger here than it was in cases like Allegheny County—which involved a crèche in the foyer of a public building used for conventional governmental purposes.

Another key factor to be considered under the Supreme Court’s cases is the extent to which other students might be made to feel unwelcome because religious banners are displayed as part of the organized, pre-game activities.  Santa Fe Ind. Sch. Dist. v. Doe (a case forbidding a high school from permitting a student-elected Chaplain to lead a prayer at a high school football game) makes clear that football games are school-sponsored activities that are important to many students, and that it is not permissible to force students to have to choose between attending games or being exposed to unwelcome religious displays or messages.

When we widen the constitutional focus to locate Establishment Clause disputes in a larger perspective, we readily see that a government’s decision to delegate authority to private individuals as to what messages will be permitted at publicly sponsored events cannot reasonably be understood to avoid constitutional constraints. This would be obvious if we were talking about delegating authority that did not focus on expression. Suppose, for instance, that a school delegated authority to a student committee to decide where graduates sit on graduation day, and the committee decided that all the black graduates should sit in the back of the auditorium.  No one could deny that this would violate the Equal Protection Clause, even though the individual students on the committee, not school officials, made the discriminatory decision.

And the same reasoning often applies to decisions about who gets to speak and what they can say.  Kuntze High School is alleged to have delegated its authority to decide what messages are communicated on the banners the players will run through to enter the field at school football games to the high school cheerleaders. And it also seems that the very decision about which students get to be cheerleaders in the first place is delegated to cheerleaders from Lamar University.  But the school can’t escape constitutional responsibility for its decisions by giving authority over school-sponsored expressive activity to a private group of students or anyone else.

This almost has to be true if we care about safeguarding Establishment Clause values. If a school can delegate authority to student groups with regard to these kinds of activities and avoid constitutional review, then the cheerleaders could decide to lead the students at football games in prayers, rather than school cheers (and the Supreme Court’s decision in Santa Fe v. Doe clearly forbids that). Or the school could delegate to a student group the authority to decide upon whatever banners the group’s members want to hang on the interior walls of the school building.

If the student group decided to hang 30’ by 10’ banners proclaiming sectarian messages on the walls of the school building, would we say there would be no Establishment Clause violation here either, simply because the school had delegated its authority to students, rather than exercised its power directly? The Court rejected this kind of an argument in Santa Fe v. Doe when it held that a public high school could not avoid Establishment Clause requirements by ceding the power to decide whether or not to have a prayer at school football games to the student body.

 

Free Speech Analysis

But what about the free speech rights of the cheerleaders?  Plaintiffs argue that because the speech on the banners is not attributable to the school, it is private speech protected by the Free Speech Clause of the First Amendment. They thus suggest that they have a constitutional right to control the content of these banners free from government interference. They argue that the school has the authority to permit them to display their banners at the football game for the football players to run through, and that once the school does so, the Constitution protects them against regulations that would restrict the content of what they say.

The key problem with this argument is that even if we assume for purposes of argument that plaintiffs are correct that they are engaged in private speech (not attributable to the school), the school has not opened up its property (the football field) for expression by any other students. No one else besides the cheerleaders gets to place their banners in front of the football players entering the field; only the high school cheerleaders get access to this location for whatever expressive message they choose to communicate or facilitate.  This kind of selective control of, and access to, public property for private expressive purposes is constitutionally problematic.

Let us be clear:  This is not a situation in which the school here is passively opening up a public location and event to allow various private speakers to express their various messages.  Instead, the school (under plaintiffs’ argument) is authorizing a single private group, the cheerleaders, to decide (presumably by majority vote, although that is not clear) what messages get expressed on specific public property, without any guidance to limit the discretion they exercise in making such decisions.  No one gets access to have their message expressed on banners that the team will run through without the cheerleaders’ permission. The cheerleaders have complete discretionary control over the messages that may be communicated on banners leading the team in each and every football game.  The cheerleaders can express sectarian messages of only one faith while rejecting suggestions of messages of other faiths. They can embrace the virtues of one race and denigrate the worth of others.  They can express political messages for particular parties or candidates while rejecting messages from competing candidates or parties. They can adopt suggestions from their parents, friends, or pastors while ignoring messages proposed by people whose views they find objectionable.

This kind of unbridled latitude given to a select group of private citizens but denied to others to use public property resources for expressive purposes is inconsistent with free speech values and, indeed, quite possibly itself would violate the Free Speech Clause.  In other words, far from creating a free speech First Amendment right on the part of the cheerleaders, the school’s actions (under the cheerleaders’ characterization of them) here might themselves create a violation of the Free Speech Clause.

The Supreme Court has made it clear in Lakewood v. Plain Dealer Publishing Co. that giving unbridled discretion to government officials to decide who gets to speak in a public forum (limited or otherwise) is unconstitutional, because doing so raises “the specter of content and viewpoint discrimination.” That danger isn’t meaningfully avoided when government confers unbridled discretion to decide what messages are permitted to be expressed on public property upon a private group, rather than upon a government official.

Indeed, to return to the Establishment Clause, this is precisely the kind of unbridled discretion given to select private individuals that the Court rejected in Santa Fe v. Doe.  Giving the majority of the cheerleader squad the authority to determine whether scripture is displayed on banners, or prayers are offered before games, isn’t substantively different from allowing the majority of students to vote on whether a prayer will be offered at football games, the policy struck down in Santa Fe.  Reducing the number of students who get to make the decision doesn’t eliminate (and indeed may increase) the danger that minority viewpoints can (indeed, are likely to) be ignored by the students who are given the authority to determine what messages will be communicated.

Nor should it make any difference whether the group making the decision is selected on the basis of cheerleader athletic skills, or some other characteristic such as school spirit or how loud the students can yell. What is problematic about giving one group of private individuals the discretionary authority to decide what messages will be expressed on public property is that they may exercise that authority in content- and viewpoint-discriminatory ways.

Assessing The Two Clauses of the First Amendment Together

Of course, the school might avoid the restrictions imposed by the Free Speech Clause that we just described by accepting responsibility for the cheerleaders’ banners. Even though government cannot give unbridled discretion to a group of private individuals to control speech on public property, government can engage in its own speech, and in so doing necessarily engages in content or viewpoint discrimination when it expresses or sponsors its own message. The Free Speech Clause does not limit the state’s discretion to express its own messages on public property.

But if the school accepts responsibility for the religious messages on the banners, then it endorses religion in violation of the Establishment Clause principles that we described earlier.  And if (as the cheerleaders argue) the school has no constitutional responsibility for the messages on the banners (a proposition which we find less than convincing) then, in any event, the school would be seen as providing one group of private students discretionary control over access to public property for only those messages that the group favors. Giving that kind of discretionary, long-term control over access to public property to any private group undermines our constitutional commitments to open access to public property for minorities, religious or otherwise.

So under either characterization, it seems the only way for the school to obey the Constitution is to prohibit the religious display, which is why we think the cheerleaders could very likely lose their lawsuit if and when it winds its way up the appellate ladder.

Vikram David AmarVikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
Alan E. BrownsteinAlan Brownstein is a Professor of Law and the Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at the University of California, Davis, School of Law.
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  • http://twitter.com/AttyVette AttyVette

    I think the cheeleaders will win in court..the Freedom from Religion organization started this action although evidently no one had complained or contacted them about the signs used for the football players to run through at the Kountze games. Thankfully, a legal organization Liberty Institute was contacted by the cheerleaders and is handling this matter on their behalf and this legal organization is well versed in constitutional arguments.

    • EugeniaC

      No, the cheerleaders will lose. The article that you posted beneath clearly explains why.

    • Clyde B

      I think the cheerleaders will lose in court. If the cheerleaders had racist messages and no one complained, it would be justified for an organization to step in and file suit. Thankfully, the Freedom from Religion organization stepped in to stop the cheerleaders from forcing others to be exposed to their discriminatory messages.

      • http://twitter.com/bro_bol Br Benjamin

        How are their messages discriminatory? One thing is having your own opinion: we all have that :-). Another thing is striking out at others. The cheerleaders messages are full of positive values, and don’t strike out at others in any way. So unless every opinion or point of view that you don’t agree with is discriminatory, how does that make the cheerleaders bad?

        • Evil Overlord

          They’re not positive messages if you’re not a Christian. They’re messages of favoritism and exclusion.
          Why do people (and Christians in particular) feel that it’s necessary to press their views on others? Say I were a black female vegetarian Jain. Would you think it appropriate for me to insist that all courthouses post statements about ahimsa, or “Black Power rules!”, or “Women are terrific!”, or “not eating meat keeps me pure!”? Wouldn’t you find that these somehow made you, a white male (apparently Christian, perhaps omnivorous), something of a second class citizen? Why do Christians find it so hard to think that their efforts, far from venerating their god, effectively try to put them above others?

          • Joshua Brooks

            Your logic doesn’t hold; perhaps if you were an employee (then again, the cheerleaders aren’t) and wanted to hold those signs as your personal opinion on court grounds, it’s questionable but I don’t know if I’d have a problem. Then we’d run into the same problems the article suggests.

    • http://www.facebook.com/edsilha Edward Silha

      It appears that you failed to read the article above or feel you are more knowledgeable than law professors with years of study and experience.

    • http://twitter.com/CPRMSJ Capu Letto

      Did you read the article? The actions of the cheerleaders are not defensible.

    • Eleanor

      If these banners are really “bothering people of different beliefs, do what I do in instances where I don’t want to see something “offensive” Wait til the players are on the field, then go into the stadium. Nobody makes you go and sit through this. Otherwise, cover your eyes or look away. God has been taken out our lives so much already, I admire the Cheerleaders for standing up for this freedom. I always say, if you don’t want to see it, don’t go. Is God going to be taken away from us completely because it might offend someone. Others are not that sensitive to us who believe in God with their rants, TV.,signs etc. Where is the fairness???? Stay home if you don’t like it. Simple. Go in late.

      • neroden

        What if other students decided to put up a competing set of cheerleaders, promoting atheism, before the football game? If the school allowed that, then fine. But somehow I suspect the school would prohibit that. *That makes the cheerleaders’ message the official school message.*

  • TIMMY188

    Clearly the Cheerleaders are not causing the School to accept their religious beliefs by promoting their banner, but are just using their First Amendment rights guaranteed to all the citizens of the United States of America. If we do not allow them to use their free speech rights, then soon ministers will be banned from preaching the Gospel from the pulpits. It is time for Americans to stand up for their rights as citizens of this great country. Evil will prevail if good men, and women do not stand up for what they believe. Righteousness exalts a nation, but sin is a reproach to any people.

    • Mathew Goldstein

      The school is accepting whatever messages are displayed by the cheerleaders, not because the cheerleaders are “causing” the school to accept the messages, but because the school deliberately adopted a policy of refraining from exercising their authority to control the content of the banners. The school has the obligation to exercise their authority to control the contents of those banners, so if the school fails to exercise its authority then the school is responsible for its failure. The school cannot turn around and deny that it alone has this authority or claim that it has surrendered its authority to someone else for the purpose of escaping its obligation.

    • RogerE

      Clearly the Cheerleaders ARE causing the School to accept their religious beliefs because no other banners are allowed for the football team to bust through. While wearing uniforms on the field at a football game, they are representatives of the school, as such, their ‘free speech’ has some limits. They have no right to proselytize their religion while acting as school representatives.

      You appear to be a Christian and thus are predisposed to approve of Christian messages, but I wonder how you would feel if the cheerleaders’ messages were something that you didn’t agree with? Would it be okay with you if they used “their First Amendment rights” to display banners saying that “Allah is Great!” or “Satan is on our side”?

      The idea that “If we do not allow them to use their free speech rights, then soon
      ministers will be banned from preaching the Gospel from the pulpits.” is ludicrous. No one is even remotely suggesting such a thing. All we are saying is that public funded institutions are for ALL the people. Not just Christians, but ALL faiths and even no faith.

    • http://twitter.com/CPRMSJ Capu Letto

      Did you bother reading the article at all? Your argument is flawed and the flaws are explained quite clearly in the article.

    • Cory Gage

      So then, you have no problem with other groups putting up banners that represent opposing religions for the players to run through? I’m sure there are some Pastafarians and some Satanists who would love to have their message displayed on such things.

    • http://twitter.com/ImRightYerWrong Copernicus Darwin

      DId you not read the article? “The key problem with this argument is that even if we assume for
      purposes of argument that plaintiffs are correct that they are engaged
      in private speech (not attributable to the school), the school has not
      opened up its property (the football field) for expression by any other
      students. No one else besides the cheerleaders gets to place their
      banners in front of the football players entering the field; only the
      high school cheerleaders get access to this location for whatever
      expressive message they choose to communicate or facilitate. This kind
      of selective control of, and access to, public property for private
      expressive purposes is constitutionally problematic.” So sick of you people thinking that breaking the law is ok as long as the laws being broken are something that you agree with.

  • http://www.facebook.com/Trina.B.Love Trina Sarita Boone

    This case is yet another reason I need to personally contact The Freedom From Religion Foundation. The expression of christian religious ideology is especially out of control. No student, should be forced into religious indoctrination. I witnessed this unseemly public behavior at a high school graduation. Its sick. And should be completely discontinued.

  • RogerE

    Good article. Nice to read something about the case that fairly discusses the situation without all the emotional baggage one usually sees in articles about this case. Though I think the Texas state court judge who made the ruling to let the cheerleaders continue displaying the banners did that more because he was afraid to rule otherwise than that he thought that the cheerleaders would win. He basically passed the buck. His ruling meant that the cheerleaders got a free pass to continue this year.

  • Marty Stone

    The facts are clear: The events in question are school sponsored, on school property and the cheerleaders are organized and operate under the official umbrella of the school and the taxpayer funded school system.

    These prayer banners serve no secular purpose. There is no legal constitutional justification to have them continue. No amount of mealy-mouthed posturing by theocrats and their lawyers will not change that. Bad decisions by local judges afraid to do the right thing will not change that.

    The Kountze High School is a publicly funded institution, which receives its monies from all the taxpayers – not just the Christian ones. Having them display overtly religious banners at school sponsored events can only leave others feel like complete outsiders. Because that’s what sectarian prayers do – they separate the US as a people into just us and them.

    With all the brave men and women, overseas and in harm’s way who have sworn an oath to preserve, protect and defend the Constitution – the least we can do is to make sure we honor that same Constitution (and its principles) here at home.

    No one’s personal god or so-called holy book trumps our shared Constitution. That’s what it means to be an American.

    Ask yourselves this: Would it be OK for the cheerleaders to put up banners that say: “There is NO GOD – Win this for yourselves!”, or “Heil Hitler” with a big swastika, instead of the current bible verses? How about verses from the Koran or B’agavad Gita? Maybe some Zen koans? If not, why not? Wouldn’t this be a violation of their free speech or religious rights?

    No, they would not be able to do any of that, because they are representatives
    of the school – not themselves. You know it and you know their behavior is not only wrong, they are bullies. Just bullies for Jesus.

    BTW, has anyone been following the Kountze Lion’s record – since they’ve been charging through their “All Hail Jaysus and Apple Pie” banners? Let me quote Jody Seaborn, in the Statesman (Austin, TX) – posted 11/1/2012:

    “Alas, the winning effect the banners may have had on the Lions has forsaken the team. Victory has become elusive. The last two weeks have been particularly rough. Kountze lost 64-10 to the undefeated and district-leading Newton Eagles on Oct. 19 and 26-7 last week to the 6-2 East Chambers Buccaneers.

    “I’ve been following the fate of the Kountze Lions since I first read about the cheerleaders’ banners weeks ago. Cheerleaders, as you cheer for glory, have you noticed that your Lions have been outscored 90-17 the past two weeks? That they lost three of their four games in October?”

    Perhaps those pious yet outlaw cheerleaders should study up on Matthew 6:5 and 6, where I quote from the King James Cambridge version:

    6:5 And when thou prayest, thou shalt not be as the hypocrites are: for they love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men. Verily I say unto you, They have their reward.

    6:6 But thou, when thou prayest, enter into thy closet, and when thou hast shut thy door, pray to thy Father which is in secret; and thy Father which seeth in secret shall reward thee openly.

    I do look forward to that day, where once again, most of not all Americans have read, understand and place the highest value on the US Constitution – our shared sacred secular birthright.

  • Barry Greenhalgh

    Thanks for this. My daughter moved to Texas when she married. Her private views on religion were quickly questioned. She was silently (mostly, but not always) ridiculed for nonconformity. High school football is institutionally acknowledged to be a significant part of the Texas high school experience. A banner supporting atheism would have no prayer being allowed. The establishment clause analysis includes the practical effect of allowing religious messaging that promotes the ideology of the majority.

  • Barry Greenhalgh

    It is unlikely a banner promoting atheism would be allowed at a high school football game in Texas. The establishment clause does not ignore reality.

  • wheasonjr

    This shows a perfect reason why every parent should have the right to send their children to the school of their choice regardless of monetary income. Without this we inhibit the family structure through the school system. I am talking about a voucher system where family could choose the social training of their own children and get government out of the equation and allow the family to function.

    • Eleanor

      I don’t think the government is responsible for people to send their child to a “better” school. In my day if a parent wanted their child to go to a different school, simple, pay for the tuition. Government has its nose in too many things as it is now, Now we are telling schools what they can do in extracurricular activities, which are by the way requirements to get fed, aid. You don’t offer these sports, band, etc. you don’t get any help. Damned if you do, damned if you don’t. My faith in my higher power, which I believe is God and Jesus Christ has helped me endure many hardships. We all believe in a higher power, we have different names for it. We don’t try to tell others how to worship, so why should the government take away freedom of religion???

      • wheasonjr

        A voucher system would not be a taking away of religious rights in my opinion. The idea is that if there is a better school, in the opinion of the parent, they could send their child there. The benefit may be social (religious) beliefs or a higher rating in a school graduation scores. The idea is that if our tax dollars are going to education it should benefit all families. One other thought, if a school is not progressing in it’s capabilities with regard to it’s students learning they would have to improve or go out of business. I being of Christian beliefs would have liked to have a choice where my children went, I did not as my pay check was not large enough to send my children to another school. I had no choice with where mine went so I sent them to a school that I would consider substandard except for a while myself and my wife taught them and when they went back they were above average. This was high school and I never went to college and my wife may have went one year. Our teaching was better than the licensed school teachers. We were only teaching 4 at home so it would be a small class in the defense of the teachers. The vouchers should only be valid to actual schools but should be available to schools of all religions and of course schools of no religious affiliation. The tax dollars for schooling do not belong to the government local or federal it should only be considered to be held in trust for public schooling.

    • wheasonjr

      Are you saying that the government is using their money, I thought it was the public’s money. Where I am from many of the private schools cost less that the public schools so in some cases it would cost less, if it cost more then the parent or guardian would have to chip in the balance. I am not sure when your day was but if it is as in my day society considered the child to be under the parents control. Now it is going more and more to the child being under the control of government. By the way an added note, in public schools in most states they have practically stopped all Christian belief in public school but have adopted a form of sectarian humanism which is a religion. It teaches a particular ethical and moral belief that each one is expected to embrace and live by.

  • NPR4U

    That’s a very broad and disingenuous interpretation of Santa Fe. Under this reading, it would be a violation of the Establishment Clause for a football player to Tebow , a soccer player to make the sign of the cross, or a class valedictorian to say a prayer or speak about Buddha, Jesus Christ, Muhammad, or any religious figure during their graduation address. Santa Fe turned on two facts: (1) the school controlled the content of the speech, and (2) the school’s policy encouraged religious speech. The 11th and 8th Circuit were very clear about this. Neither of those facts appear here. There’s no doubt that an objective observer, aware of the history and implementation of these signs would perceive them as private speech of the cheerleaders trying to encourage the football players. Only a mere passerby could come to the opposite conclusion; and the Supreme Court has made it abundantly clear that mere passersby do not set the standard under the Establishment Clause.

    • Joshua Brooks

      Nice to see someone post an opinion without getting personal or hostile.

    • nekelund2

      People attending a high school football game, as well as the coaches, the players, the cheerleaders and the officials, are not mere passersby. You are turning the standard on its head by suggesting that the standard to be met is that non-passersby who are fully informed of the school’s internal policies and the history of the banners must feel that it is a violation of the Establishment Clause. To do so would effectively allow for promotion of sectarian religious values as long as the underlying policies are unknown to most and those that know them attest that it doesn’t violate the Establishment Clause. The passersby reference is to suggest that the determination must not be based on purely subjective or fleeting perception, but that of an objective, reasonable individual. To say that having cheerleaders hold sectarian messages at every home game with religious quotations would not be viewed as an endorsement of religion is disingenuous, like having someone come to every game and lead the team in prayer, only to say that this person was merely exercising free speech and that the school had neither the will nor the power to control what was said. The fact that the game does not necessarily take place on school property or during school hours or that it is not part of the curriculum does not change the fact that the team and the cheerleaders are objectively representing the school and play/cheer with the implied support of the school. The USSC would have no problem with the players/cheerleaders being sanctioned by the school if the sign said “Bong Hits 4 Jesus”. A school is not free to decide when and where to permit the endorsement of religious beliefs, nor is it free to simply abdicate responsibility for any messages presented in its name by saying that it had nothing to do with it, or else schools would be effectively allowed to skirt the Establishment Clause by proxy or by claiming ignorance. Were this an isolated incident, perhaps the school could argue plausible deniability, but the post suggests that such messages occurred prior to all or most games, such that the school either knew of it or was willfully blind to it. If the cheerleaders were not cheerleaders but merely fans in the stand chanting about Jesus or Allah or Buddha, there might be an argument that the speech was not explicitly or implicitly endorsed by the school. But allowing school-sanctioned cheerleaders to display religious banners at school-sanctioned games through which the school-sanctioned team runs before every game has a strong whiff of Establishment Clause violation, even to someone who might be familiar with the school’s policies. A school would not be allowed to have a priest or rabbi or imam come in to the school every week and then act surprised and claim freedom of speech if it just happened that the guest spoke about religion every time.

      • NPR4U

        There is no concern that schools might skirt the Establishment Clause by proxy or ignorance because if the School has a purpose of advancing religion the court will make that determination, e.g. Santa Fe. And yes, the standard does consider non-passersby, but they need only be reasonably informed. Thus, as in this case, the slightest inquiry into what the cheerleaders were doing would reveal that the team decides as a group what to place on the banners, pay for it with their own money, and paint the banners on private property; the school has NO involvement in that process. Moreover, the state has explicitly opened the forum for private speech, such as this. Any person aware of those simple facts would clearly see that the speech is private. The fact that the school permits it does not mean that it endorses it, but merely that it refuses to discriminate against private religious speech, particularly positive speech intended to encourage and build people up.

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