KOUNTZE - by Scott Lawrence - State District Judge Steven Thomas has issued a Temporary Injunction allowing the Kountze cheerleaders to continue displaying religious messages on run-through banners at least until a June 24, 2013 trial.
The judge released his decision at about 1 p.m. Thursday and announced the trial date.
Attorneys representing the cheerleaders, the Kountze ISD and the Texas Attorney General's Office met in State District Judge Steve Thomas' chambers at about 8 a.m. Thursday to discuss the case. No agreement was reached and the attorneys delivered statements in open court beginning at about 8:30. The hearing ended within one hour.
KFDM reporter Kalie Desimone is covering the hearing. Stay with KFDM and kfdm.com for updates.
David Starnes, the attorney representing the cheerleaders, spoke first.
"This (Temporary Injunction) is needed because it will cause harm to the students since they wouldn't be able to display their signs, particularly for Friday night's game."
He argued they have the right to display the signs.
"It is the individual speech of the cheerleaders and not in fact the government speaking. It is not just one girl or one person in the group that comes up with the quote, but it's on a rotating basis that each girl gets to pick the quote. That is their individual voices that are being portrayed on the banner."
Starnes argued the school district isn't promoting religion through the signs.
"The Kountze school district has no policy and does not push any particular form of expression or religion, which is also different from Sante Fe vs. Doe."
He says a football game is considered a limited public forum during which the banners should be allowed, as opposed to a graduation.
Thomas Brandt, the attorney representing Kountze ISD, argued the banners violate the U.S. Constitution and Sante Fe vs. Doe.
"The girls are puppets on a string," Brandt told Judge Thomas.
"The Superintendent, although making a very unpopular decision, did not make it in malice. He made the decision based on Sante Fe vs. Doe."
Brandt said it's clear the decision goes against public sentiment in Kountze.
"The political winds are blowing very strong in one direction but the law says something different. This is not a freedom of speech case. This is an issue of the Establishment Clause."
The Anti-Defamation League issued a statement in which it called the judge's decision misguided.
"Public schools are for children of all faiths or no faith, and these banners were clearly being displayed in the context of school-sponsored activities," the group said. "Faith is a profoundly personal decision, so students should not be subjected to an exclusionary school-sponsored religious message on campus or be forced to choose between attending quintessential school events - football games - or being subjected to an unwanted religious message."
The Freedom From Religion Foundation, which is dedicated to the separation of church and state, argued in the context of a football game it was unclear who was responsible for the messages, the school or the cheerleaders.
"The speech in question is government speech or, at a minimum, school-sponsored speech," the group said in court papers. "If the majority of the cheerleaders were atheists, would a court support their 'right' to hold up a banner insulting Christianity or all believers? The district has every right to simply prohibit all run-through and on-field banners."
Judge Thomas issued a Temporary Restraining Order September 20 allowing the scriptural messages. His order expires Thursday.
He issued the order after the Freedom From Religion Foundation based in Madison, Wisconsin wrote a letter of complaint about the banners to the Kountze ISD Superintendent, Kevin Weldon. In the letter, the organization said it had received a complaint from someone who saw the banner in the Kountze football stadium early in the season.
Weldon said he consulted the legal counsel and was told the banners violate a Supreme Court ruling in a case from the Sante Fe ISD in Texas. He said legal counsel told him the banners were tantamount to allowing student-led prayer and violate the Establishment Clause of the Constitution. He banned the signs.
David Starnes, attorney for the cheerleaders, and counsel from the Liberty Institute, filed suit to allow the girls to continue using the banners. Judge Thomas issued a TRO September 20 allowing the continued use of the banners.
Starnes and counsel from the Liberty Institute argue the banners are allowed under the Free Exercise Clause as well as state law.
In 2007, the Texas Legislature updated state law dealing with student religious expression by passing H.B. 3678, known as the "Religious Viewpoints Antidiscrimination Act" (RVAA). This law applies to all elementary and secondary public schools and its stated purpose is to ensure that schools treat "a student's voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner" that the school treats similar student expression of a secular or other viewpoint. Among other provisions, the RVAA requires every school district to establish a "limited public forum" for student speakers at all events where students are called on to speak. It also requires districts to adopt a policy to implement the provisions of the statute and sets out an optional model policy to accomplish this.
Freedom From Religion argued that using banners with phrases such as, "I can do all things through Christ that strengthens me," violates the First Amendment prohibition on the government establishing a religion.
Texas Attorney General Greg Abbott has sent a representative from his office to defend the cheerleaders. He filed court papers to intervene in the cheerleaders' lawsuit.
Abbott said that since the cheerleaders create the banners without school funding, they qualify as free speech and should not be banned.
"This is student-led expression, and that's perfectly constitutional," Abbott said. "We will not allow atheist groups from outside the state of Texas to come into the state to use menacing and misleading and intimidating tactics to try to bully schools to bow down to the altar of secular beliefs."
The foundation responded by accusing Abbott of abusing his elected position to promote religious views.
"Abbott has crossed the line from carrying out his secular constitutional duties to defend the state of Texas, to using his government bully pulpit to bully and scapegoat atheists," its statement said. "Those cheerleaders are free to worship as they like, go to the church of their choice, but not to exploit a public school event, and their school-sponsored podium, to push their personal religious views on an entire stadium."
The case began when the foundation wrote to the school district, threatening a lawsuit. The group is dedicated to the separation of church and state and believes that religion hinders social progress.
Joining Abbott at a news conference Wednesday, Gov. Rick Perry said he supported the cheerleaders and denounced the Freedom From Religion Foundation.
"Anyone who is expressing their faith should be celebrated, from my perspective, in this day and age of instant gratification, this me-first culture that we see all too often," Perry said. "We're a nation built on the concept of free expression of ideas. We're also a culture built on the concept that the original law is God's law, outlined in the Ten Commandments."
Kelly Shackelford, the president of Liberty Institute which is representing the cheerleaders, welcomed Abbott's intervention in the case.
"Greg Abbott again has proven that he is a friend of students and is willing to fight for their religious freedom," he said.
(With assistance from The Associated Press. Copyright 2012 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.)