N0. IN THE COURT OF APPEALS FOR THE NINTH DISTRICT BEAUMONT, TEXAS KOUNTZE INDEPENDENT SCHOOL DISTRICT, Appellant V. COTI MATTHEWS, on behalf of her 'minor child, MACY MATTHEWS, er al., Appellees On Appeal from Cause No. 53526 356th Judicial District Court of Hardin County, Texas BRIEF OF AMICI CURIAE ACLU, ACLU OF TEXAS, et al. ATTORNEY FOR AMICI: REBECCA L. ROBERTSON State Bar No. 00794542 AMERICAN CIVIL LIBERTIES UNION OF TEXAS I500 McG0wen Street, Suite 250 Houston, TX 77004 Tel: (713) 942-8146 Fax: (713) 942-8966 rrobertso11@ac1u.org OF COUNSEL: DANIEL MACH HEATHER L. WEAVER AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th Street, 6th Floor Washington, DC 20005 JENNIFER LEE AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 TABLE OF CONTENTS Index of Authorities I. Issues Presented 11. Statement of Interest A. Description of Amici B. Interest in the Case Statement of Facts A. Texas Public Schools Serve a Religiously Diverse Population B. Kountze ISD Sponsors and Controls the Display of Bible Verses on Run-Through Banners at Football Games 1. 2. Cheerleading Is a District-Sponsored Activity As Representatives of the District, Members of the Squad Must Meet District Requirements and Adhere to District Rules Paid District Employees Supervise the Squad The Religious Run-Through Banners Are School--Sponsored Speech As Representatives of the District, the Cheerleaders Are Given Special Access to the Football Field to Display the Rur1~Through Banners During the Pregame Ceremony The District Concedes That the Banners Constitute School--Sponsored Religious Messages C. Procedural History IV. Summary of Argument V. Argument A. Religious Liberty Cannot Thrive in Texas Diverse Public Schools Without Robust Enforcement of the Establishment Clause 1. The Establishment Clause Protects the Right of Individual Conscience and Minimizes Religious Discord 2. Enforcement of the Establishment Clause in Public Schools is Especially Important if Texas Is To Effectively Serve Religiously Diverse Student Bodies B. The District Display of School-Sponsored Run- Through Banners Featuring Bible Verses Violates the Establishment Clause 1. The Run-Through Banners are School Sponsored Speech 2. The Use of School-Sponsored Run~Through Banners to Disseminate Bible Verses to Students Fails the Endorsement, Coercion, and Lemon Tests 3. The District's "Fleeting Expressions of Community Sentiment" Policy Is a Legal Fabrication That Unconstitutionally Places Students of Minority Faiths and Beliefs at the Mercy of the Majority IV. Prayer Certificate of Compliance Certificate of Service Appendix APP INDEX OF AUTHORITIES ChandE:S:SJames, 985 F. Supp. 1068 (M.D. A1a.1997) .. 53 Coles 12. Cleveland Bd. ofEdac., 171 F.3d 369 (6th Cir. 1999) .. 43 DeSpain v. DeKalb Cnty. Comm. Sch. Dist, 384 F.2d 836 (7th Cir. 1967) .. 62 Doc ex rel. Doe v. Elmbrook Sch. Dist., 687 F.3d 840 (7th Cir. 2012) .. 59 Doe 12. Indian River Sch. Dist., 653 F.3d 256 (3d Cir. 2011) .. 62 Doe v. Silsbee Indep. Sch. Dist, 402 Fed. App. 852 (5th Cir. 2010) .. 49 Edwards v. Aguillard, 482 U.S. 578 (1987) .. 41, 42, 43 Engel v. Vitale, 370 U.S. 421 (1962) 44, 63 reiler v. Tangipahoa Parish Bd. of Educ, 185 F.3d 337 (5th Cir. 1999) .. 61 Goodwin 12. Cross Cnty. Sch. Dist. No. 7, 394 F. Supp. 417 (E.D. Ark. 1973) .. 46 Grounds v. Tolar Indep. Sch. Dist, 856 417 (Tex. 1993) .. 34 Herdahl v. Pontotoc Cnly. Sch. Dist., 933 F. Supp. 582 (N.D. Miss. 1996) .. 46, 53 Holloman ex rel. Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004) .. 46, 60, 63 Ingebretson 12. Jackson Pub. Sch. Dist., 88 F.3d 274 (5th Cir. 1996) .. 46, 61 Jager v. Douglas Cnzy. Pub. Schs., 862 F.2d 824 (11th Cir. 1989) .. 63 Karen B. v. Treen, 653 F.2d 897 (5th Cir. 1981) .. 46, 60 Lee 12. Weisman, 505 U.S. 577 (1992) ..passim Lemon Karizrnan, 403 U.S. 602 (1971) ..passim McC0llam 12. Ba. 0fEd., 333 U.S. 203 (1948) .. 42, 43 McCrear_y County 12. Am. Civil Liberties Union 0fKy., 545 U.S. 844 (2005) ..38, 40, 60 Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) ..passim Sch. Dist. of Abington v. Schernpp, 374 U.S. 203 (1963) ..passim Stone 12. Graham, 449 U.S. 39 (1980) .. 44 W. Va. State Ba. 0fEdac. v. Barnette, 319 U.S. 624 (1943) .. 37 Wallace 12. Jafiree, 472 ULS. 38 (1985) .. 37, 58 Statutes Tex. Const. art. 1., 6. .. 39 Other Sources Cited James Madison, Memorial and Remonstrance Against Religious Assessments (1785) (collected in Selected Writings of James Madison 21 (Ralph Ketcham ed., 2006)) .. 38, 40 Letter from James Madison to Edward Livingston, July 10, 1822, available at . . .. 39 Danny Merrell, Koantze Cheerleaders Get Victory in Bible Banner Case, Kicks105.com (May 8, 2013), .. 24 Jason Morris, Cheerleaders Win Temporary Injunction In High-profile Free Speech Case, CNN.com (Oct. 18, 2012), 10/ 18/ .. 24 Judge Rules Koantze ISD Cheerleaders Can Display Religions Signs, (May 8, 2013), .. 23 Manny Fernandez, In Texas, A Legal Battle Over Biblical Banners, N.Y. Times, Oct. 12, 2012, at A13 .. 12 Richard Stewart, Opponent Challenges Election of Beanrnonfs First Black Mayor, Houston Chron., May 10, 1994, at A16 .. 12 The Texas Almanac, .. 10, 11, 12 Southern Jewish Mayors Throughout History, The Goldring/Woldenberg Institute of Jewish Southern Life .. 12 Texas State Membership Report, The Association of Religion Data Archives .. 11 Issue on appeal: I. ISSUES PRESENTED Whether the trial court erred in ruling on motions for summary judgment -- in direct conflict with controlling U.S. Supreme Court authority Santa Fe v. Doe - that school-sponsored "run through banners" featuring biblical quotes are consistent with the Establishment C1ause's prohibition against school officials directing or delivering religious messages to students. II. STATEMENT OF INTEREST A. DESCRIPTION OF AMICI This brief is tendered on behalf of the organizations identified below. No person was paid a fee for preparing this brief. The American Civil Liberties Union (ACLU) is a nationwide, nonprofit, nonpartisan organization with over 500,000 members dedicated to defending the principles embodied in the Constitution and our nation's civil rights laws. The ACLU of Texas is a state affiliate of the national ACLU. Throughout its 90-year history, the ACLU has been at the forefront of efforts to protect religious liberty and has appeared on numerous occasions before the U.S. Supreme Court, other federal courts, and state courts in a variety of First Amendment and religious>> liberty cases. The Anti--Defamation League was organized in 1913 to advance good will and mutual understanding among Americans of all creeds and races and to combat racial, ethnic, and religious prejudice in the United States. Today, ADL is one of the world's leading organizations fighting hatred, bigotry, discrimination, and anti-Semitisrn. Among ADL's core beliefs is strict adherence to the separation of church and state. ADL emphatically rejects the notion that the separation principle is inimical to religion, and holds, to the contrary, that a high wall of separation is essential to the continued flourishing of religious practice and belief in America, and to the protection of minority religions and their adherents. Interfaith Alliance Foundation is a 501(c)(3) non-profit organization that celebrates religious freedom by championing individual rights, promoting policies that protect both religion and democracy, and uniting diverse voices to challenge extremism. Founded in 1994, Interfaith Alliance's members across the country belong to 75 different faith traditions as well as no faith tradition. Interfaith Alliance supports people who believe their religious freedoms have been violated as a vital part of its work promoting and protecting a pluralistic democracy and advocating for the proper boundaries between religion and government. Muslim Advocates, formed in 2005, is a national legal advocacy and educational organization dedicated to promoting freedom, justice, and equality for all, regardless of faith. Muslim Advocates advances these objectives through legal advocacy, policy engagement, civic education, and by serving as a legal resource to promote the full and meaningful participation of Muslims in American public life. The Union for Reform Judaism has 900 member congregations across North America, which includes 1.3 million Reform Jews. The Central Conference of American Rabbis counts more than 2,000 Reform rabbis as members. The Women of Reform Judaism represents more than 65,000 women in nearly 500 women's groups in North America and around the world. These three organizations share a common commitment to the principle of separation of church and state, believing that the First Amendment is the bulwark of religious freedom and interfaith arnity. The concept of separation of church and state has lifted up American Jewry, as well as other religious minorities, providing more protections, rights, and opportunities than have been known anywhere else throughout history. Hadassah, The Women's Zionist Organization of America, Inc., founded in 1912, has over 330,000 Members, Associates and supporters nationwide. While traditionally known for its role in funding health care and other initiatives in Israel, Hadassah also has a proud history of domestic and international advocacy, including protecting the rights of the Jewish community in the United States. Hadassah has long been committed to the protection of the strict separation of church and state that has served as a guarantee for religious freedom and diversity. Hadassah has participated in numerous amicus briefs upholding this fundamental principle. Hadassah opposes any effort to bring organized religion into the public schools, including the introduction of officially sponsored, organized, or sanctioned prayer at public school sporting events or programs. The Hindu American Foundation is an advocacy organization for the Hindu American community. HAF seeks to cultivate leaders and empower future generations of Hindu Americans. Since its inception, the Hindu American Foundation has made legal advocacy one of its main areas of focus. From issues of religious accommodation and religious discrimination to defending the fundamental constitutional principles of free exercise and the separation of church and state, HAF has educated Americans at large and the courts about various aspects of Hindu belief and practice in the context of religious liberty, either as a party to the case or as amicus curiae. Americans United for Separation of Church and State is a national, nonsectarian public-interest organization based in Washington, D.C. Its mission is twofold: (1) to advance the free--exercise right of individuals and religious communities to Worship as they see fit, and (2) to preserve the separation of church and state as a vital component of democratic government. Americans United has more than 120,000 members and supporters across the country. Since its founding in 1947, Americans United has participated as a party, counsel, or amicus curiae in numerous church-state cases across the country, including numerous cases involving religious freedom in public schools. Through both lawsuits and non~ litigation, Americans United regularly advocates on behalf of public-school students and parents who wish to participate in school activities and events without having unwanted religious exercises and messages imposed on them. The Sikh Coalition is the largest community-based Sikh civil rights organization in the United States. Founded on September 11, 2011, the Coalition works to defend civil rights and liberties for all people, empower the Sikh community, create an environment where Sikhs can lead a dignified life unhindered by bias and discrimination, and educate the broader community about Sikhism in order to promote cultural understanding and tolerance. The Establishment Clause of the First Amendment is as an indispensable safeguard for religious minority communities in public schools. The Sikh-American Community in Texas is robust, with significant clusters in the Dallas, Houston, Austin, and San Antonio metropolitan areas. Sikh children in Texas and around the country are often victims of bias-based school bullying and discrimination because of their religious articles of faith unshorn hair and turbans). Sikh-American children everywhere have the right to attend public schools and participate in extracurricular activities without undue pressure from a religious majority. B. INTEREST IN THE CASE Amici submit this brief to provide the Court with information regarding the requirements of the Establishment Clause. Texas public schools serve students of myriad faiths and religious beliefs. The Texas and U.S. Constitutions protect these students' rights to exercise and express their faith in school in a variety of ways: Students may pray individually or in groups, read religious literature, or engage in other religious practice during free time (like recess or lunch) provided that they do not cause a disruption or interfere with the education of other students. Students may discuss their beliefs with their peers and those beliefs may be reflected in their assignments, so long as they are germane. Students are also entitled to form religious clubs in secondary schools and wear religious jewelry and clothing pursuant to their faith. Amici have defended all of these rights and more.' Of equal importance, religious liberty also includes the right of students to decide for themselves which religious beliefs, if any, to adopt. It ensures the right of minority-faith students and nonbelievers to attend public schools and to take part in all of the benefits and offerings of those schools without being marginalized or made outcasts by school officials who favor or disfavor particular religious beliefs. When public schools sponsor or promote religious messages, they violate these fundamental rights and infringe students' freedom of conscience by (1) suggesting that students who adhere to the endorsed religious tenets are officially favored and those who do not are second-class citizens within the school community, and (2) pressuring students to conform to the officially supported (usually niajoritarian) beliefs. These infringements of conscience occur regardless of whether the school- sponsored religious messages are delivered by school officials themselves, invited I See ACLU Defense of Religious Exercise in Public Schools, ACLU Program on Freedom of Religion and Belief, at expression~public--schools; The Sikh Coalition, Bullying, programs/advocacyfbullying (detailing efforts to prevent biased-based bullying and harassment of Sikh children in public schools). 7 guests, or students. Thus, the U.S. Supreme Court made clear in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), that student-led promotion of religion is impermissible under the Establishment Clause of the First Amendment to the U.S. Constitution where the religious messages are attributable to or otherwise endorsed by -- a public school. Whatever Texas law may provide, public schools must, first and foremost, comply with this federal constitutional mandate. Appellant Kountze Independent School District or the "District") has maintained throughout this case that the run-through banners displayed at Kountze High School football games are school--sponsored messages government speech) -- not the private speech of individual cheerleaders. Guided by well established public-school jurisprudence, Amici agree. The banners are made at the behest of the District. School officials review and approve the banners' content and give the cheerleading squad privileged access to the football field to display the banners during pregame ceremonies. As KISD has repeatedly asserted and the record evinces, the District has always "understood and intended that in preparing and displaying banners . . . the Cheerleader Squad as a whole and the individual cheerleaders . . . act as representatives and spokespersons for . . Kountze High School." (KISD Supp. R. at 1940 (Resolution Order No. But Amici cannot agree, and nor should this Court, that the District may lawfully use the school-sponsored banners to disseminate Bible verses under its new "Fleeting Expressions of Community Sentiment" policy. In this context, "community sentiment" is merely a euphemism for the majority's religious beliefs, and if the Establishment Clause means anything, it means that the government may not be complicit in imposing the majority's religious doctrine on followers of minority faiths. The District cannot circumvent this fundamental principle and constitutional protection by trading in semantics. The use of the term "fleeting," meanwhile, betrays the District's View that the regular infringement of students' constitutional rights via school-sponsored displays of scriptural passages during school events is too trivial to warrant concern. Here, too, the District is mistaken about what the Establishment Clause allows and disallows. As the Supreme Court has held, "it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment." Sch. Dist. of Abington. v. Schempp, 374 U.S. 203, 225 (1963). The District's "fleeting expressions of community sentiment" policy is not supported by the case law, which clearly prohibits public schools from promoting 2 Citations to Supp. refer to the Supplemental Clerk's Record applied for by Thomas Brandt, Attorney for Kountze ISD, and delivered to this Court July 8, 2013. 9 biblical tenets and other religious messages to students. Allowing the banners to be displayed on this ground would strike at the heart of the Establishment Clause by giving broad cover to public schools across Texas to impose the majority's religious beliefs -- under the guise of majority "community sentiment" -- on their religiously diverse student bodies. While all students have the right to practice their faith privately in the public-school setting, this type of official religious promotion alienates and excludes students of minority faiths and nonbelievers and sparks religious tensions and divisiveness within school districts. Amici urge this Court to ensure that these harms do not come to fruition by holding that the run--through banners are sponsored by the District and that the District's use of this official platform to promote Bible verses or other religious messages to students during football games contravenes the Establishment Clause. STATEMENT OF FACTS A. PUBLIC SCHOOLS SERVE A RELIGIOUSLY DIVERSE POPULATION. Texas is home to students and families of a wide variety of faiths and many people who claim no faith at all. Texas communities include, among other religious traditions, Protestants, Catholics, Orthodox Christians, Jews, Muslims, Baha'is, Buddhists, Hindus, Jains, Jehovah's Witnesses, Sikhs, Taoists, Unitarian Universalists, Mormons, and Zoroastrians. See Religious Groups in Texas, The 10 Texas Almanac (May 14, 2012), (compiled principally from the 2010 U.S. Religion Census conducted by the Association of Statisticians of American Religious Bodies); see aiso Texas State Membership Report, The Association of Religion Data Archives rcms20l0_48_state_name _2010.asp (last visited Aug. 28, 2013) (compiling data from 2010 the U.S. Religion Census: Religious Congregations Membership Study, published by the Association of Statisticians of American Religious Bodies). Within these faith traditions, there is another layer of broad diversity in belief and practice throughout Texas. Protestantism, for example, is represented by Evangelical Protestants, Mainline Protestants, and Black Protestants, which, in turn, comprise assorted Methodist, Baptist, Pentecostal, Lutheran, Adventist, Episcopalian/Anglican, and Holiness congregations. See ARDA, supra. Judaism is represented by Conservative, Orthodox, Reform, and Reconstructionist congregations; and Buddhism by Mahayana, Theravada, and Vajrayana congregations. See id. (listing denominations and congregations of various faith traditions throughout Texas). Religious diversity across the state continues to grow. For example, according to the 2010 U.S. Religion Census, more Muslims live in Texas than any 11 other state. Religion, The Texas Almanac, (last visited Aug. 28, 2013). Texas is second only to California in the number of Hindus, and it ranks third in the number of Buddhists and Catholics. Id. It has the fifth largest population of Mormons. Id. While Texas "remains one of the nation's more 'religious' states," more than 10 million Texans report no religious affiliation. Religious Afliliation in Texas, The Texas Almanac, religious--affiliation-texas (last visited Aug. 28, 2013). Kountze, Texas, where KISD is located, and other southeast Texas towns are not immune to these trends. In 1992, Kountze was the first town in the United States to elect a Muslim mayor.3 In addition, over the last three decades, the citizens of Kaufman, Plano, Dickinson, Galveston, and Beaumont have all voted Jewish mayors into office.4 3 See Manny Fernandez, In Texas, A Legal Battle Over Biblical Banners, N.Y. Times, Oct. 12, 2012, at Richard Stewart, Opponent Challenges Election of Beaumonfs First Black Mayor, Houston Chron., May 10, 1994, at A16. 4 Southern Jewish Mayors Throughout History, The Goldring/Woldenberg Institute of Jewish Southern Life (last visited Aug. 28, 2013). 12 B. KOUNTZE ISD SPONSORS AND CONTROLS THE DISPLAY OF BIBLE VERSES ON RUN-THROUGH BANNERS AT FOOTBALL GAMES. 1. Cheerleading Is a District-Sponsored Activity. For decades, KISD has operated a cheerleading squad as "an organized extracurricular activity of . . . Kountze High School (See KISD Supp. R. 1940 (Resolution Order No. see also id. at 1814-15 (Aff. of Reese Briggs).) The District established the squad for various education-related purposes, "including, but not limited to, teaching students to be responsible, have self-respect, put forth honest effort, strive for perfection, develop character, learn teamwork, and take pride in a quality performance through maintaining high standards." (See id. at 1940 (Resolution).) Like the District's athletic teams, the cheerleading squad is governed by District policies that apply to school-sponsored extracurricular groups, including FM Legal, "Student Activities" (id. at l8l7~28), and F0 Local, "Student Discipline" (id. at Through these policies, the "District officially supports the cheerleading squad and exercises authority and control over the squad." (See id. at 1815 (Briggs 5 KISD separately permits students to form, on their own, "nor1curriculurn--related" groups. (KISD Supp. R. 1813-14, 1830-31 (Briggs Aff. FNAB Local Policy).) Although these groups are permitted to meet on campus during noninstructional time and may publicize their events to students, the policy explicitly states they are not sponsored by the District and that they may not "imply to students or to the public that they are school--sponsored." (Id. at 1830 (FNAB Local).) To that end, the District requires that "[a]ll letterheads, flyers, posters, or other communications that identify the [noncurriculuIn--related] group shall contain a disclaimer of such sponsorship." In addition, while the District assigns an employee "to attend and 13 2. As Representatives of the District, Members of the Squad Must Meet District Requirements and Adhere to District Rules. The KHS cheerleading squad includes student cheerleaders, a student manager, and one or two students who dress up and perform as the KHS mascot, a lion. (See KISD Supp. R. 276-79 (Cheerleader Constitution); 786 (Savannah Short Depo. at 987 (Tonya Moffett Depo. at 1536 (Beth Richardson Depo. at Unlike membership in "non-curriculum-related groups (supra note 5), students must meet a number of requirements in order to be eligible for the squad. They must maintain a minimum grade average of 70 in each academic class and should exhibit "the ability to get along with teachers and other students." (Id. at 276.) Aspiring squad members also must "have an athletic physical just like any student who's in athletics." (Id. at 151617 (Beth Richardson Depo. at 111:25- 11223).) They are further expected to in total compliance with school policies," including the student code of conduct, and to "[h]ave good teacher recommendations." (Id. at 278 (Cheerleader Constitution).) The District imposes these limitations on membership because cheerleaders are considered representatives of KHS and the District. As the squad's constitution explains, cheerleader's behavior in any activity must NEVER reflect adversely monitor each student group meeting," the monitor is only "present at meetings and activities in a nonparticipatory capacity to maintain order and protect school property." (Id. at 1830-31.) Monitors and other District personnel are banned from "promot[ing], 1ead[ing], or participat[ing] in the meetings of noncurriculum--related student groups," (id. at 1830), and the monitors are not paid. (Id. at 1814 (Briggs The District's cheerleading squad was not formed parsaam.' :0 FNAB Local and is not operated in accordance with that policy. (Id. at 1814-15.) 14 on the squad or the school. This may result in the loss of membership as a cheerleader." This means that cheerleaders must "show good sportsmanship" and avoid "[f]rowning, pouting, non-participation, and other problems of a like nature" during games. (Id. at 281.) They must "be leaders within the school and set a good example at all times" and be "courteous and friendly to all other team members as well as the student body." As representatives of the school, cheerleaders receive special privileges and recognition. In addition to playing a prominent role at football games, squad members make special appearances, in their uniforms, on behalf of the football team and school. For example, the cheerleaders and the mascot lead students in cheers during pep rally assemblies, which typically take place during the school day in the KHS gym. (See id. at 748 (Ashton Lawrence Depo. at 42: 1 786 (Savannah Short Depo. at 953 (Macy Matthews Depo. at l0l0~ll (Kieara Moffett Depo. at They also are featured in, and required to attend, the District's public homecoming parade. (Id. at 938 (Nahissaa Bilal Depo. at 953, 956 (Matthews Depo. at 21:10-17, In addition, every Friday morning during football season, instead of attending their first--period class, cheerleaders (including the mascot) are required to visit the District's intermediate and elementary schools to greet children as they enter and to promote school spirit. (See id. at 2014 (Whitney Jennings Depo. at 15 1970 (Misty Short Depo. at Football players often accompany the cheerleaders. (Id. at 2014 (Whitney Jennings Depo. at 8: 3. Paid District Employees Supervise the Squad. The District pays two employees to "oversee, lead, organize, and, if necessary, discipline members of the squad." (KISD Supp. R. at 1815 (Briggs Sponsors report directly to the KHS athletic director and principal and receive a $2500 stipend for their additional responsibilities. (Id. at 984 (Tonya Moffett Depo. at 1445, 1499, 1609 (Beth Richardson Depo. at 40:12- 22; 94:14-18; 204: During the 2011-2012 and 2012-2013 school years, the District tapped Beth Richardson, a counselor at KMS, and Tonya Moffett, a full- time substitute teacher in the District, to fill these positions. (Id. at 974-75, 978, 984 (Tonya Moffett Depo. at 15:21-16:8, 3029-14, 1414, 1428 (Beth Richardson Depo. at 9: 18-22, Unlike the chaperones appointed for non- curriculum related groups, who may not participate in group activities in any Way (supra note 5), the paid cheerleading sponsors play a hands-on role in supervising and managing the squad and have broad authority over the cheerleaders. (See id. at 1815 (Briggs a. The District-employed sponsors enforce the squad's membership and behavioral rules. Sponsors must attend and supervise all practices and performances, as well as all games, where they remain on the field or sidelines with the squad. (See KISD 16 Supp. R. at 285 (Rules Regulations); 989 (Tonya Moffett Depo. at 1417-18, 1503-04 (Beth Richardson Depo. at 12:25-13:7, The sponsors are charged with enforcing squad membership and behavioral standards and may impose discipline or take other action if squad members fail to abide by the squad constitution and the cheerleader rules. (See, id. at 281 (Cheerleader Constitution) ("Members who choose not to display these characteristics will be subject to probation or dismissal at the discretion of the coach/sponsor and/or principal"); 286 (Cheerleader Rules) ("The sponsor also has the right to bench a cheerleader from performances who exhibits behavior not considered ethical or For example, the sponsors enforce the District's "no--pass-no-play" rule and hold students accountable for missed practices and games. (S ee KISD Supp. R. 979-80 (Tonya Moffett Depo. at 36:5--18, see also id. at 792-93 (Savannah Short Depo. at 902-03 (Adrianna Haynes Depo. at 27:20- 28:18, 914-15 (T'mia Hadnot Depo. at 1922-22); 938, 943 (Bilal Depo. at 5l:2--17, 1460-62 (Beth Richardson Depo. at While the current sponsors do not always enforce every aspect of the Cheerleader Constitution, such as issuing demerits, past sponsors did so, and the current sponsors affirmatively "reserve the right to enforce any one of those rules" as they see fit at any time. (See id. at 243-45 (Beth Richardson TRO Testimony at 87:2- 89:3); see also id. at 908 (Haynes Depo. at 17 b. The District controls the cheerleaders' public behavior, image, and expression because cheerleaders are representatives of the school. Unlike the unpaid chaperones attached to non--curriculum-related groups (supra note 5), the sponsors of extracurricular activities are authorized to "establish standards of behavior, including consequences for misbehavior, that are stricter than those for students in genera (See KISD Supp. R. 1899 (KI-IS Student Handbook); 1840 (F0 Local); see also id. at 978 (Tonya Moffett Depo. at 30:17- 20) (agreeing that sponsors have "authority to decide what behaviors . . . to allow and . . . disallow in the For example, the cheerleading sponsors have required prospective cheerleaders to sign an "Addendum to the Cheerleader Bylaws" prohibiting them from "represent[ing] themselves, or the squad in an unfavorable, questionable, or illegal manner through electronic media . . . or using electronic communication devices in such a way as to bring discredit, dishonor, or disgrace on their squad or members of any other school organizations." (Id. at 284.) Violations of these rules will result in "disciplinary actions determined by appropriate school officials . . . which may include dismissal from the squa (Id) In addition, the sponsors strictly regulate the dress and grooming of cheerleaders. (Id. at 1463 (Beth Richardson Depo. at They decide what "can or cannot be included on uniforms," determine when and where cheerleaders may wear their uniforms, and make sure that cheerleaders do not modify their 18 uniforms or otherwise appear in a manner that the sponsors consider immodest. (See id. at 141 (Kieara Moffett TRO Testimony at 920 (Hadnot Depo. at 986 (Tonya Moffett Depo. at 1463, 1624-25 (Beth Richardson Depo. at 58:8-20, With the exception of the homecoming game, the cheerleaders are required "to attend games in uniforms whether they perform or not" because they "will still be representing the team and (See id. at 279 (Cheerleader Constitution); see also id. at 131, 134-35 (Kieara Moffett TRO Testimony at 38:22-24, 983-84 (Tonya Moffett Depo. at Sponsors also have final authority over cheerleaders' dance choreography and cheer routines and may intervene if they consider moves to be inappropriate. (See id. at 1484-85, 1624-25 (Beth Richardson Depo. at 79:11-80:21, 219215- 220:l9) (stating that sponsors are empowered to limit provocative or immodest moves even if they do not rise to the level of lewd); 995-96 (Tonya Moffett Depo. at 100:21-13) (agreeing that sponsors may prohibit dance choreography or cheers 99 99 64 that are inappropriate, including those that are "immodest, 1n poor taste, not showing good sportsmanship," or "showing disrespect for the other Finally, the sponsors supervise the cheerleaders' preparation of run--through banners during practices, which take place on school grounds. (See, id. at 1521 (Beth Richardson Depo. at Sponsors review and approve the 19 banners before they are displayed at games. (See id. at 1611 (Beth Richardson Depo. at Sponsor Moffett explained the process: Q. During that year did you and Ms. Richardson approve all the banners before they were taken out to the football games? A. Yesthe same way? The banner was painted. Then you were asked to approve the banner itself? A. Yes. (See id. at 998 (Tonya Moffett Depo. at 110:1 School officials view the banners as "a reflection of Kountze High School" and "would not allow banners that reflect poorly on" the school. (See id. at 360 (KISD Interrogs. Resp.).) The sponsors and other school administrators reserve the right to change the message on any banner or veto its display if they consider the banner to be inappropriate or offensive for any number of reasons. (See, id.; see also, id. at 203 (Weldon TRO Testimony at 254-55 (Beth Richardson TRO Testimony at 98:19-99:14) (testifying that banner messages may not Show poor sportsmanship); 360 (KISD Interrogs. Resp.) (stating that banners may not include unsportsmanlike, racist, inappropriate, or offensive messages); 1141-42 (Tonya Moffett Depo. at 104:12--105:17) (explaining that she would not allow squad to use or inappropriate messages on banners).) 20 4. The Religious Run-Through Banners Are School-Sponsored Speech. KHS "has a longstanding tradition of rur1~throngh banners at varsity football games." (KISD Supp. R. 360 (KISD Interrogs. Resp.); see also id. at 940 (Resolution Order No. The banners have always been prepared by the cheerleading squad. (Id. at 358 (KISD Interrogs. Resp.).) KISD has always "understood and intended that in preparing and displaying banners . . . the Cheerleader Squad as a whole and the individual cheerleaders . . . act as representatives and spokespersons for . . . Kountze High School." (Id. at 1940 (Resolution Order o. Although the sponsors and some cheerleaders have testified that the squad did not make banners on several occasions this past school year, creating the banners is identified in the squad's governing documents as an official squad responsibility. (See, id. at 286 (Cheerleader Rules) (listing the "creat[ion of] sideline signs and run-through signs" as the first of cheerleaders' "n1ir1imurn" duties). And for more than two decades, the squad has routinely made and displayed the banners at "almost all Kountze High School varsity football games." (See id. at 358 (KISD Interrogs. Resp.); 1547 (Tonya Moffett Depo. at see also id. at MS (Kieara Moffett Depo. at 749 (Lawrence Depo. at 4728-11); 902-03 (Haynes Depo. 21 a. The religious run-through banners are not the speech of any individual student. The banners prepared by the squad are typically sized 30 feet by 10 feet and feature a "victory slogan." (Id. at 358 (KISD Interrogs. Resp.).) This past school year, the cheerleaders came up with the idea to replace the usual messages on run-- through banners with Bible verses. Although there is some disagreement about the exact process followed, it is clear that "[t]he messages are not the choice of any one cheerleader; rather, the squad decides the message by general consensus." (See KISD Supp. R. at 359 (KISD Interrogs. Resp.); see also 7959? (Savannah Short Depo. at 46:6--24, 53:2--9) (stating that they decide on the specific passages as a group); 899 (Haynes Depo. at 14:9-15: 19) (testifying that the weekly squad leaders would pick the Bible quote and then consult with the remaining team members to come to agreement via informal discussion); 995 (Tonya Moffett Depo. at 98:16- 100:l4 (explaining that weekly leaders determine which scripture to use and the rest of the squad goes along with it); 1548-49 (Beth Richardson Depo. at l43:l3-- Because the banners include both the biblical message and the citation to the Bible chapter and verse, "there's no mistaking, [it] is a quote from the Bible." (See 6 Each week, the sponsors appoint three squad members to run practices and lead that week's activities. (See KISD Supp. R. 937 (Bilal Depo. at 995 (Tonya Moffett Depo. at l5l8 (Beth Richardson Depo. at To prevent conflict and ensure success for the week, the sponsors select students based on class year and "certain personalities that would work better" in their opinion. (See id. at 1519 (Beth Richardson Depo. at 14: 1-1 22 id. at 164 (Matthews TRO Testimony at 8:10-9:6) (agreeing that the banners obviously feature Bible passages).) For example, during the 2012 homecoming pregame ceremony, cheerleaders displayed a banner proclaiming, can do all things through CHRIST which strengthens me." The in was painted to resemble a wooden cross, and the biblical citation, "Phil. 4:13," was noted beneath the scriptural quote. (See Judge Rules Kormtze ISD Cheerleaders Can Display Religious Signs, (May 8, 2013), (photo included in Appendix); see also KISD Supp. R. 755 (Lawrence Depo. at 1021 (Kieara Moffett Depo. at 1534 (Beth Richardson Depo. at 2034 (Ashton Jennings Depo. at 4: 1 Another week, the official run-through banner declared, "But thanks be to God, which gives i through our Lord Jesus Christ," and featured a citation to the Bible Verse, Cor. 15:57." (KISD Supp. R. at 301 (photo included in Appendix); 922 (Hadnot Depo. at 46:20-25 In early October 2012, one run-through banner urged, "and Let us RUN with Endurance the race GOD has set Before (Id. at 772 (Rebekah Richardson Depo. at 164-65 (Matthews TRO Testimony at 1534 (Beth Richardson Depo. at The banner, which also cited the source for the quotation, "Hebrews 12:1," was painted in the school colors of red, white, and 23 black. (See Jason Morris, Cheerleaders Win Temporary Injunction In High-profile Free Speech Case, CNN.com (Oct. 18, 2012), (photo included in Appendix).) Examples of biblical quotes used on other run-through banners last year include: b. press on toward the goal to win the prize for which God has called me in Christ Jesus. Phil. 3:14." (See CNN.corn, supraagainst us? Romans 8:31." (See KISD Supp. 1534 (Beth Richardson Depo. at see also Danny Merrell, Koimrze Cheerleaders Get Victory in Bible Banner Case, Kicl