David Starnes thought the case was open-and-shut.
“I thought I was going up to Kountze — it takes me about 25 minutes to get there — I’d have about a 15-minute hearing, I’d get a temporary restraining order, and I’d go back to Beaumont,” the Beaumont attorney told members of the media at a Thursday meeting of the Press Club of Southeast Texas, held at Cafe del Rio in Beaumont. “This case would be over, and nobody would bother the cheerleaders again.”
That was October 2012, when the case of the Kountze High School cheerleaders first began making waves in the national news. School officials prohibited the cheerleaders from displaying banners bearing religious messages such as, “I can do all things through Christ who strengthens me,” after the Wisconsin-based Freedom from Religion Foundation claimed the signs violated the First Amendment clause that prevents the government from establishing or endorsing a religion.
Since then, Starnes and the handful of cheerleaders he represents have found themselves embroiled in a year-long, very public battle that now includes the American Civil Liberties Union of Texas and has reached the Ninth Court of Appeals. Hardin County 356th District Court Judge Steve Thomas ruled in May that the sings were constitutionally permissible. In late August, Kountze ISD’s district attorney filed an appeal requesting clarification to prevent further litigation.
Starnes said the case is unique because it does not concern an invocation at a graduation ceremony, as most prayer cases do. The crux of the case, he said, is whether the message on the banners is considered private student speech or government speech. If it is determined to be the latter, the school district cannot allow it.
Starnes used the Religious Viewpoint Anti-Discrimination Act to cross-examine former KISD Superintendent Kevin Weldon. The law, signed by Gov. Rick Perry in 2007, “has confirmed a student’s right to expression without expanding religious expression in schools beyond what is allowed by the Supreme Court,” according to the Office of the Governor website — and has also created a limited public forum for the cheerleaders to do exactly what they’re doing, Starnes said. He referenced the 2000 Supreme Court case Santa Fe v. Doe, which ruled that a policy permitting student-led, student-initiated prayer at high school football games violates the Establishment Clause of the First Amendment.
“The question becomes, ‘Who chose the message?’” he said. “In this case, no school district employee chose this message — this message was chosen by the cheerleaders.”
The cheerleaders are not discriminating against other religions unless students of another faith were barred from presenting their message, Starnes said. He added that Kountze ISD reserved the right to add a disclaimer — either on the banners or over the stadium’s P.A. system — stating that the banners did not reflect the opinion of the school district, but have not done so.
Starnes said that the case would be a distant memory but for the appeal, adding that publicly, the school board claims to support the cheerleaders.
“There is no such thing as an appeal for clarification,” Starnes said. “Out of one side of your mouth, you’re saying that’s what you want, but out of the other side, you’re saying, ‘No, we want to reverse that order.’ You can’t have it both ways.”
Starnes also added that the amount of taxpayer dollars the district has expended appealing this case would “shock the community” if made public. However, this is not the case, according to Tom Brandt, the Dallas attorney representing the district.
The school district’s litigation fees are covered by the Texas Association of School Boards, Brandt said. He also disputed Starnes’ claim that the appeal was an indication of the district's lack of support for the cheerleaders, citing instead a threat of attorney fees and a lack of clarity as the reasons.
“I can assure you that the school board did not want to have a judgment entered against them, and they did not want to pay attorney fees to Mr. Starnes,” Brandt said in a telephone interview.
There is no basis for the court’s judgment against the district, Brandt said. He asserted governmental immunity, which protects the districts from the claims that were brought by Starnes’ clients.
“One very fundamental problem is that there is no basis for the judgment against the district, and that is what our position has been,” Brandt said. “He’ll make you think that we’re opposed to the cheerleaders, but that’s not the case.”
David Starnes thought the case was open-and-shut.
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