Released by the Texas Attorney General's Office:
September 27, 2012
Mr. Kevin Weldon
Superintendent
Kountze Independent School District
P.O. Box 460
Kountze, TX 77625
Dear Superintendent Weldon:
I write to offer my assistance and to provide advice
about a menacing and misleading letter you recently received from an
organization called the Freedom From Religion Foundation (FFRF). That
organization has a long history of attempting to bully school districts into
adopting restrictive religious speech policies that go well beyond what is
required by the United States Constitution. Consistent with that history, the
letter you received incorrectly claims that allowing Kountze High School
cheerleaders to display banners decorated with Bible verses at football games
amounts to a "serious and flagrant violation of the First Amendment." That
exaggerated claim is not supported by the Constitution. Instead, it is based
solely on FFRF's distorted, anti-religion view of the First Amendment, a view
that is unsupported by court precedent and has recently been rejected by the
Fifth U.S. Circuit Court of Appeals.
It appears that your recent decision to prohibit the
cheerleaders at Kountze High from displaying their religious messages at
football games—a decision that has since been blocked by a court order—was
based on a mistaken belief that FFRF's letter correctly interprets the law.
Unfortunately, that mistaken belief was apparently reinforced by erroneous
advice from the Texas Association of School Boards. Contrary to FFRF's claims,
however, the Supreme Court has never held that it is illegal for a public
school to "host religious messages at school athletic events." And the Supreme
Court has never ruled that religion must be "kept out" of public schools.
Instead, each of the Supreme Court cases cited in FFRF's letter involve
decisions by public officials to promote a religious message or to direct the
content of a private citizen's religious message.
Unlike the cases cited by FFRF, Kountze ISD has neither
made the decision to include a religious message on the cheerleaders' banner,
nor provided any direction as to the content of the cheerleaders' message.
Rather, news reports indicate that these decisions were made entirely by
students. Those same news reports also indicate that the banners were made by
the cheerleaders off of school property and without the use of school funds.
That these students chose to express their religious viewpoint at a school
function does not violate the Establishment Clause.
When the school district does not join in the students'
religious message or seek to control or direct that message, the cheerleaders'
decision to display their banners cannot constitute promotion or imposition of
religion by the school district. Rather, the banners are the religious speech
of individual students, which enjoys protection under the Free Speech and Free
Exercise Clauses of the First Amendment.
In addition to the protections afforded by the First
Amendment, Texas law further protects students' free exercise of religion by
requiring school districts to "treat a student's voluntary expression of a
religious viewpoint . . . in the same manner the district treats a student's
voluntary expression of a secular or other viewpoint." Tex. Educ. Code §
25.151. Moreover, a school district "may not discriminate against the student
based on a religious viewpoint expressed by the student on an otherwise
permissible subject." Id. To the extent the district seeks to prevent the
cheerleaders from displaying their banners because the cheerleaders decided to
express a religious—as opposed to a secular—message, it may very well violate
section 25.151 of the Texas Education Code.
Think about it: Can a school district or the Freedom From
Religion Foundation stop a student from making the sign of the cross before
taking a test, or stop football players from pointing toward heaven after
scoring a touchdown or kneeling to pray for an injured teammate? Of course not.
Just like the cheerleaders' banners, such public displays of religion are
voluntary expressions of the students' beliefs and are not attributable to the
school district.
The Fifth U.S. Circuit Court of Appeals recently
vindicated these legal principles—and rejected FFRF's restrictive view of the
First Amendment—in a case involving Medina Valley ISD in Castroville, Texas. In
May 2011, a group called Americans United for Separation of Church and State
filed a lawsuit against Medina Valley in an attempt to prevent student speakers
from praying as part of their speech at their graduation ceremony. My office
supported the school district by arguing that the First Amendment does not
require public schools to interfere with students' right to freely express
their religious beliefs. A unanimous panel of three federal appeals judges
ruled in favor of the school district and permitted Medina Valley High School
seniors to pray at their graduation ceremony. The appeals court explained that
there was no showing that the "prayers or other remarks to be given by students
at graduation are, in fact, school-sponsored." The same is true here: The
cheerleaders are expressing their own beliefs, not those of the school
district. Just as Americans United for Separation of Church and State was wrong
in Castroville, the Freedom From Religion Foundation is wrong in Kountze.
As the United States Supreme Court has observed, "[w]e
are a religious people whose institutions presuppose a Supreme Being." Zorach
v. Clauson, 343 U.S. 306, 313 (1952). And as the Fifth Circuit's Medina Valley
ruling demonstrates, school districts that allow students to speak freely about
their religious beliefs have the Constitution on their side. A school
district's policies regarding student expressions of religious belief should be
guided by the educational goals of the district and an appropriate respect for
students' freedoms of speech and religion—not by threatening letters that
misstate the law and distort the First Amendment.
If you decide to allow the cheerleaders of Kountze High
to freely display their chosen message on their banners at football games, and
if the Freedom From Religion Foundation or any other group sues Kountze ISD as
a result, my office stands ready to file a brief with the court protecting the cheerleaders'
religious liberties.
Sincerely,
Greg Abbott
Attorney General of Texas
Related Stories:
Judge: TX cheerleaders can put Bible verses on signs for now
Texas cheerleaders told no Bible verses on signs
All content © Copyright 2000 - 2013 WorldNow and KLTV, a Raycom Media Station.
