To Cheer or Not to Cheer

In Texas, a group of middle school cheerleaders like to create hand-made signs bearing Christian messages.  The football players would then “bolt” through the banners as they ran onto the field.[1]  The cheerleaders decided that they would use messages “give glory to God” rather than the typical alliterative “Bludgeon the Bears” or “Take out the Tigers”.  The superintendent of the schools, with the backing of the Texas Association of School Boards, banned the banners.  The superintendent informed parents that religious displays at school events are not permitted.

Why not?  In 2000, the Supreme Court ruled that student led prayer at a school event violates of the establishment clause.[2]  Writing for the majority, Justice Stevens noted that, “The Santa Fe school officials simply do not “evince either ‘by policy or by practice’ any intent to open the [pregame ceremony] to ‘indiscriminate use,’ …by the student body generally.  Rather the school allows only one student, the same student for the entire season, to give the invocation.”  In this case, the student body voted whether to keep the invocation and then voted on who would deliver it for the season.  Stevens, agreeing with the District Court, concludes that this method ensures minority views will not be voiced.  Additionally in this case, “…the policy, by its terms, invites and encourages religious messages.  The policy itself states that the purpose of the message is to ‘solemnize the event’.  And so the Santa Fe school could no longer elect a member of the student body to give an invocation over the loud speaker at a football game.

So the facts in the two cases are not quite on all fours.  Here no loud speaker is used.  No vote is taken.  And, the banners, according to one of the reports there are 10 banners—one for each home game.  The players run through a banner at the beginning of the game,[3] so the same message is not repeated.  No vote is taken to determine who provides the message, although the 17 varsity cheerleaders have total control of the messages.

The differences between this case and Santa Fe v. Doe are enough to ask which line of precedent would (or should) the Court follow, if it were to hear this case.  Should Santa Fe and Morse v. Frederick control and no religious messages are allowed at school-sponsored events and school officials can disallow such messages if they go against the school’s (or district’s) policy?  Or is this more akin to Tinker v. Des Moines?  A small group of students write a message and then put it before the onrush of the football players.  We don’t even know if the banner is visible to the spectators. Indeed, after the first players run through, the message is no longer intact.  No material disruption occurred.  Is this a free speech or an establishment case?  In my view, it is closer to Tinker given that no school official supported the ‘policy’ and the banners are a message from the cheerleading squad to the players.  However, if I presented this hypothetical to my students, I am sure I would have several that would disagree and could do so with significant support and vigor.

 

 


[2] Santa Fe Independent School District v. Doe 530 US 290 (2000)

[3] Although the same article from the Houston Chronicle has a picture of the cheerleaders hanging smaller banners on a fence.

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Filed under Freedom of Speech, Assembly, and Association

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