Protect high school students’ rights to free speech
By Jeffrey Mateer and Erin Leu,
Jeffrey Mateer is general counsel of Liberty Institute, a national legal organization that seeks to defend and restore religious liberty. Erin Leu, a constitutional attorney at Liberty Institute, represents the Kountze cheerleaders in Matthews v. Kountze I.S.D.
Cheerleaders in Kountze, Tex., recently learned an invaluable lesson about the Constitution and the importance of individual expression without government censorship. Ironically, it’s a lesson they had to watch a court teach their school district.
Controversy arose this fall when the cheerleaders at Kountze High School decided to model good sportsmanship by replacing the often-violent messages on their banners, such as “Scalp the Indians,” with encouraging religious messages. The only complaints came from an antireligion advocacy group more than 1,000 miles away. In response, the Kountze superintendent issued an unlawful directive banning all such religious speech.
The cheerleaders sued their school district to preserve their rights to free speech and religious expression. Their cause gained international support, from tens of thousands of individuals across six continents. Texas Gov. Rick Perry and state Attorney General Greg Abbott spoke out, applauding the students for standing up for their rights and denouncing government hostility toward religion.
Two weeks ago a Texas court issued a temporary injunction allowing the cheerleaders to display their banners for at least the remainder of the season. Free speech prevailed, reminding us of the well-established principle that students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.
People from all political persuasions should be celebrating this decision. Many are mistakenly arguing, however, that the outcome is incorrect because the Supreme Court struck down school-sponsored prayer at football games in the 2000 case Santa Fe v. Doe. But Santa Fe recognized that “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.”
In Santa Fe, the court held that a school policy that created a majoritarian election on religion and explicitly encouraged prayer created government speech. Conversely, in this case, both Texas law and the school’s policies affirm that when students speak at school events, including football games, they are engaging in private speech and their views do not reflect the position of the school. Indeed, the policies at issue in Kountze create a forum for student speech and require the school district to remain neutral toward all viewpoints. Santa Fe involved government speech; Kountze involves private student speech.
The Kountze cheerleaders alone decide what message to place on their banners. The team is student-run, with school officials present only to monitor safety. Each week two cheerleaders take turns leading the team, including choosing whether to create banners and, if so, what messages they should bear. The supplies to create the banners are paid for with private funds, as are the cheerleaders’ uniforms, further demonstrating the private nature of their speech.
In Santa Fe, the court stated that: “By no means do [the Religion Clauses] impose a prohibition on all religious activity in our public schools. . . . Indeed, the common purpose of the Religion Clauses is to secure religious liberty.” When football players or cheerleaders are on the field in uniform, they do not become agents of the state. No one would argue that high school football players are prohibited from praying together. In the same manner, just because cheerleaders wear uniforms and are on school property does not mean that they become instruments of the school or that they must surrender their right to free speech.
High school students’ rights to free speech should be robustly protected. These students are nearly adults; they are about to enter college, military service or the workforce. Schools should be teaching students about the First Amendment and the free marketplace of ideas, including that other individuals may advocate for messages with which they disagree, instead of censoring speech that some might find offensive. As the Supreme Court has stated: “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”
This is because “[t]he Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection.”
We better serve our students by educating them about our country’s commitment to free expression rather than shutting out certain views. Otherwise, our schools do a great disservice to students and fail to prepare them to be citizens of our free society.
Nonetheless, the character of the Kountze cheerleaders should give us hope for the future. With young adults like these ready to respectfully stand for our Constitution, our freedoms are more secure.
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