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KFDM learns appeals court ruling in Kountze cheerleaders case says district's policy change makes parents' claims moot; plaintiffs' attorney plans appeal
SOUTHEAST TEXAS - by Scott Lawrence
KFDM News has learned the Ninth Court of Appeals in Beaumont has ruled in the Kountze cheerleaders case, deciding the parents' underlying claims are moot because the district changed its policy and said it's not required to disallow the religious messages on banners.
The attorney for the Kountze ISD, Thomas Brandt, tells KFDM News it's a "complete victory" for the district, and says the district will continue to allow religious messages on banners, as it allows other messages on banners, if they're appropriate.
Plaintiffs' attorney David Starnes tells KFDM News he will most likely appeal because he believes under the ruling, the district could still decide to ban the religious messages or determine the content of the messages.
Watch KFDM News and stay with kfdm.com for reaction.
KFDM News was first to report the court ruling Thursday morning.
The ruling said the parents' underlying claims are moot because "Parents obtained a ruling in their favor before their case was rendered moot. The trial court awarded Parents a temporary restraining order and a temporary injunction against Kountze ISD. Moreover, Kountze ISD has stated that Parents' lawsuit prompted it to change the school's policy. Because there is a question about whether Parents have a legally cognizable interest in recovering attorney's fees and costs-this claim for attorney's fees remains a live controversy and has not been rendered moot."
"We will most likely appeal to the Texas Supreme Court," cheerleaders' attorney David Starnes told KFDM News. "The policy doesn't say the district will allow religious messages on banners. It just says the district isn't required to disallow the messages."
Starnes says he's concerned because he says the district's new policy wasn't considered in the ruling.
"The Ninth Court, we think, erred perhaps, in that the new policy isn't part of this case," said Starnes. The Kountze ISD did not have the policy in place when they banned the religious messages on the banners. It's an opinion that did not reach what it needed to reach. The district can claim with the injunction lifted it can control speech. Then it becomes government speech and it's impermissible. We're going down a slippery slope if the district can control the message."
KFDM News spoke with Thomas Brandt, the attorney representing Kountze ISD, for his reaction to the ruling.
"I'm very pleased for this victory," Brandt told KFDM News. "I think it is a victory for the district. I think the plaintiffs' attorney should drop the case and move down the road. From the beginning we offered to allow them to have the banners. They turned us down flat. That's what we eventually adopted as the new policy-that which we offered at the beginning. That policy convinced the court to rule the entire controversy is moot. The court said the plaintiffs' attorneys should have accepted our offer from the beginning and none of this controversy would have happened. I'm very pleased and would be disappointed if they take this to the Texas Supreme Court. I think they'll lose there. It would just be another loss for the district. We're allowing the banners so why are they appealing?"
Brandt talked about the Constitutional issues in the case.
"The summary judgment says the Establishment Clause doesn't require that we prohibit all religious messages on banners," said Brandt. "We think the proper reading of the clause allows us to allow religious messages. The Free Speech clause doesn't require us to allow them. We won in Judge Steve Thomas' court and it was affirmed by this court. What it boils down to is, the plaintiffs' attorneys believe we should be required to allow the banners," said Brandt. "We contend we should be allowed to allow the banners, not required. We won. They have not. The law doesn't require us to allow banners. They're insisting they be given a free speech right in the banners. The court said the cheerleaders' sponsors themselves admitted it would be appropriate to exercise supervision over the banners. For example, a case where there was a poor sportsmanship banner at a basketball game in Louisiana. It said 'Jesus loves you' unless you attend the other school. They admitted and the court agreed that would be a message containing the name of Jesus, but an inappropriate message. The court said, yes, the district can supervise the content of the banners. There isn't a free speech right for cheerleaders to put whatever they want on banners. But yes, if appropriate, the cheerleaders can put a scriptural quote on the banners. It's a victory of common sense. They want to persist to get the right to put whatever they want on the banner. They can't. We have no subjective or objective intent to be hostile to religion. We're going to allow it if it's appropriate."
Starnes expects a hearing on attorneys' fees in trial court Judge Steve Thomas' court.
"The Ninth Court ruling hints that the school district should pay for attorneys' fees for the parents. It's not explicit, but the ruling hints at that."
"We think they're not entitled to fees," said Brandt. "We from the beginning offered an olive branch that was rejected. And the court upheld our arguments. They didn't have to expend all the time and effort and shouldn't collect."
Statement from Kountze ISD:
Kountze ISD is pleased with the favorable ruling it received from the Beaumont Court of Appeals in the case about run-through banners at high school football games. Immediately after the controversy developed, the Board of Trustees of Kountze ISD took action to investigate and develop a policy that fit with the law and the needs of the Kountze ISD community. Kountze ISD permits cheerleaders to include a wide variety of appropriate messages on run-through banners, including Scripture quotations. Despite the clear decision of Kountze ISD permitting the banners, the plaintiffs' attorneys continued to press this lawsuit against the school district, asking for a judgment and an award of money against the school district. The decision of the Beaumont Court of Appeals makes clear that Kountze ISD took action to resolve this controversy and that there was no reason to enter a judgment against the school district.
J. Reese Briggs Superintendent of Schools