Why Don’t Cheerleaders With Religious Banners Have To Follow The Same Law As Cheerleaders Who Allege Rape?

Last week, a Texas judge held that cheerleaders at a Texas high school could continue to display banners emblazoned with Bible verses and other religious messages during high school football games, at least for the time being:

A judge stopped an East Texas school district on Thursday from barring cheerleaders from quoting Bible verses on banners at high school football games, saying the policy appears to violate their free-speech rights.

District Judge Steve Thomas granted an injunction requested by the Kountze High School cheerleaders allowing them to continue displaying religious-themed banners pending the outcome of a lawsuit set to go to trial next June 24, Texas Attorney General Greg Abbott said. Thomas previously granted a temporary restraining order allowing the practice to continue.

As a matter of law, this is almost certainly wrong. As the Supreme Court explained in Santa Fe Independent School Dist. v. Doe, “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect,” and Santa Fe also establishes that student-led prayers can nonetheless be an unconstitutional endorsement of religion. The cheerleaders’ banners were displayed at official school events by students speaking on behalf of the school while wearing official school cheerleading uniforms. While there are some subtle differences between the facts in Santa Fe and the cheerleaders’ banners, it’s hard to imagine that anyone seeing a school’s cheerleaders display a religious message at an official school event would not take that to mean that the school is endorsing religion.

And there, is another, even more distressing problem with these cheerleaders’ case. In 2010, another Texas cheerleader was sanctioned by the United States Court of Appeals for the Fifth Circuit because she sued after her school required her to cheer for a man who allegedly raped her. The core of the Fifth Circuit’s decision was that, in the alleged rape victim’s “capacity as cheerleader, [she] served as a mouthpiece through which [her] could disseminate speech namely, support for its athletic teams.” So cheerleaders are speaking on their school’s behalf while they are cheering, not on their own behalf, and thus can be required to convey the message the school wants.

To be fair, the Fifth Circuit is a federal court, while Judge Thomas is a state judge, so these cases took place in different court systems. Nevertheless, it is difficult to square one decision with the other. At the very least, alleged victims of rape should be able benefit from the exact same laws as everyone else.