Kountze ISD appeals cheerleaders' free speech case to Texas Supreme Court

Kountze Cheerleaders (KFDM file photo)

The Kountze Independent School District is asking the Texas Supreme Court to vacate a Beaumont appeals court opinion indicating that cheerleaders displaying Bible verses at football games is constitutionally protected speech.

The litigation over religious signs at Kountze school events has been going since September 2012, after the Freedom From Religion Foundation complained scriptures on run-through banners violated constitutional law separating government from religiously promoted speech.

Attorneys for the school district filed an appellate brief Monday with the state's highest civil court, online court records.

The Ninth Court of Appeals in Beaumont sided with the cheerleaders in a September opinion, then denied the district's request for a rehearing in October.

The district's attorneys responded by saying the appeals court opinion, "that the run-through banners are neither government speech nor school sponsored speech, leads to absurd results."

On Monday, Kountze ISD requested the state's supreme court to clarify the most recent opinion, citing conflicts with precedent set by previous rulings in federal court.

Kountze ISD attorneys rely on a case out of Silsbee decided by the U.S. Fifth Circuit Court of Appeals in New Orleans more than six years ago.

In that case, a Silsbee cheerleader refused to cheer for someone she'd accused of sexual assault. The cheerleader was told to either cheer for the one she accused of assault, or go home, according to court documents.

The Fifth Circuit at the time rejected the Silsbee cheerleaders' claim that she was exercising protected speech.

Kountze ISD attorneys say the Beaumont appeals court opinion conflicts with not only the Silsbee case, but others decided by the U.S. Supreme Court.

"The run-through banners at issue in this case were held by public school cheerleaders while they were cheering for the school’s football team, while they were in uniform at a school-sponsored event, and while they were on the school’s football field to which access was limited by the school," attorney Thomas Brandt wrote in Monday's brief on behalf of Kountze ISD. "In this circumstance, is the message contained on the run-through banners the private speech of the individual cheerleaders or is it the school’s speech?"

David Starnes, an attorney for the cheerleaders' parents who sued the district, released a statement to KFDM/Fox 4 reiterating the speech belongs to the students rather than Kountze ISD.

"It is remarkable that the lawyers for the Kountze School District are making the same, worn-out, rejected arguments, yet again," Starnes said. "Enough is enough. They are fully aware that the U.S. Supreme Court ruled in 1969 that 'It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' Here, the Kountze cheerleaders’ banners contained messages that they chose, painted with paint they purchased, on paper that they bought. Of course the Ninth Court of appeals simply followed the law and ruled in their favor. It is inexplicable that the District’s lawyers continue trying to suppress the cheerleaders’ constitutionally-protected religious speech, when the well-reasoned opinion of the Ninth Court of Appeals simply follows the U.S. Supreme Court law written in 1969. To do otherwise, would lead to an absurd result. "

You can read the Kountze ISD brief in its entirety here.

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