First Liberty Institute Asks State Supreme Court: Protect Kountze Cheerleaders’ Rights

May 7, 2015

First Liberty Institute files its main legal brief to Court to protect Kountze, Texas, cheerleaders’ freedom to put Bible verses on banners. Fights back against efforts by the school district, Freedom From Religion Foundation, and the ACLU in trying to censor private speech.

Current and future Kountze Independent School District cheerleaders are still in danger since the

school district continues to violate the students’ rights by claiming that the cheerleaders’ banners

are government speech—and subject to censorship and banning.


This week, First Liberty Institute submitted further briefing on behalf of the Kountze cheerleaders, as requested by the Texas Supreme Court, and is hopeful the Court will accept this case and resolve the crucial issue at hand:

The cheerleaders’ religious messaging on their run-through banners is private speech—not government speech, which is subject to censorship and banning—and is protected by the Free Speech Clause of the First Amendment of the Constitution.

For more than 20 years, cheerleaders in the Kountze Independent School District (KISD) in Kountze, Texas, have painted messages of their own choosing on run-through banners to encourage fans and players at games.

Never before had the Kountze ISD banned what wording the cheerleaders chose to use . . . until the cheerleaders painted religious messages on their run-through banners.

The decision to display Bible verses on banners was the decision of the students—and they even purchased their own materials. But then Freedom From Religion Foundation sent a complaint letter, and the Kountze ISD caved to the anti-religious foe’s misinformation and banned the cheerleaders’ religious messaging. So the cheerleaders, courageous young women who believe in their freedom of speech and religious expression, with the support of their parents and the entire community, stood up for their rights.

“How many people get the chance to represent such great ideas?” asked one of the Kountze cheerleaders at the time of the district’s ban. “How many actually get to be the person to take action? This is something I’m going to be proud of my entire life.”


First Liberty Institute, along with volunteer attorney David Starnes, filed a lawsuit on behalf of the cheerleaders. During the two years of litigation that followed, a judge granted a temporary restraining order and temporary injunction to prohibit government school officials from censoring the cheerleaders’ religious speech. The Kountze ISD stated it would allow the banners in a gambit to try to evade a court order, but still claimed the right to censor or even ban the messages.

In May 2013, Hardin County District Court Judge Steven Thomas entered an order granting the cheerleaders a victory, saying the banners were “constitutionally permissible” and rejected Kountze ISD’s attempt to dismiss the case under the claim the banners are government speech. But the Kountze ISD filed an appeal with the Beaumont Court of Appeals (and with its own court filings, the ACLU also joined the side of the school district in support of the censorship of the cheerleaders’ private, religious messages). In May 2014, the Beaumont Court of Appeals said that because the Kountze ISD stated it would allow the banners and that the cheerleaders could display religious messages but that Kountze ISD would control the speech and retain the power to censor religious messages in the future, the case and the district court ruling was moot. 

Left unresolved, however, was the claim by the Kountze ISD that the cheerleaders’ banners were government speech subject to school censorship or an outright ban without any need to justify its decision.

In May 2014, First Liberty Institute and its volunteer attorney Jim Ho of Gibson, Dunn & Crutcher, filed a petition asking the Texas Supreme Court to guarantee the private speech rights of the Kountze cheerleadersand review and reverse the decision. First Liberty Institute is hopeful the Court will accept the case for review after considering further briefing submitted last week.

“The religious messages the cheerleaders choose to display on their banners is plainly the private speech of the cheerleaders and deserves protection,” says First Liberty Institute Director of Litigation, Hiram Sasser. “The state Supreme Court needs to enforce the rule of law and reverse the Beaumont Court of Appeals ruling.”


In defense of the free speech rights of the Kountze cheerleaders, First Liberty Institute makes three key arguments in their briefing to the state Supreme Court:

1.    Because KISD has not actually ceased its unconstitutional conduct, it is still violating the cheerleaders’ constitutional rights by treating the banners as government speech.

The religious messaging chosen by the cheerleaders to paint on the run-through banners are words of their own choosing. That is private speech. The KISD has no authority to ban these positive and uplifting messages selected by the cheerleaders, and has a severe misconception of constitutional law.

2.    KISD has not met its “heavy burden” of making it “absolutely clear” that it will never again ban religious messages on the cheerleaders’ banners.

Since KISD treats the cheerleaders’ run-through banner messages as government speech, the speech is still subject to being banned by the district. All KISD has said is that it is not required to ban the cheerleaders’ religious messages—it still maintains that it could if it wanted to.

3.    If the Court of Appeals decision is allowed to stand, the cheerleaders will soon be barred from ever displaying religious messages on their banners.

Even though KISD is allowing the Kountze cheerleaders to display religious messages on their banners, if the banners are treated as government speech then they violate the Establishment Clause under existing Supreme Court precedent. And a court will have little choice but to follow precedent and ban the cheerleaders from expressing any religious messages on their banners.


As chronicled in First Liberty Institute’s Undeniable: The Survey of Hostility to Religion in America, attacks against the religious free speech rights of students like the Kountze cheerleaders are escalating—as more and more secular, anti-religious organizations send misinformation to these school officials, and threaten lawsuits unless the school officials stamp out religious expression in the school.

But the law is on the side of religious freedom in schools, and First Liberty Institute vows to continue the fight on behalf of the Kountze cheerleaders, and the work to protect freedom for future students nationwide.

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About First Liberty Institute
First Liberty Institute is a nonprofit legal group dedicated to defending and restoring religious liberty across America — in our schools, for our churches, in the military and throughout the public arena. Liberty’s vision is to reestablish religious liberty in accordance with the principles of our nation’s Founders. For information, visit

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