Starnes tells of legal 'wild ride' while representing Kountze cheerleaders

When Beaumont attorney David Starnes first began representing cheerleaders from a small East Texas community who were told they couldn't hold banners containing Bible verses at football games, he thought he would make a brief court appearance on their behalf and it would all be done.

But it’s been more than a year, and the case has started a national debate about free speech and religious liberty and is making its way through Texas appellate court.

Starnes discussed some of the legal issues involved in the case with members of local media at a meeting of the Press Club of Southeast Texas on Sept. 19 at Café del Rio.

“It’s been a wild ride,” Starnes said before a few dozen members of area broadcast and print media outlets.

The legal saga began in September 2012 at the high school in the town of Kountze. At football games, cheerleaders held signs and run-through banners containing Bible verses to inspire the Lions on the field.

But someone didn’t think the religious signs were appropriate at a public school event, and the Kountze Independent School District received a letter from the national Freedom From Religion Foundation stating the banners violated constitutional doctrine.

Following the letter, KISD Superintendent Kevin Weldon had the signs removed and ordered the cheerleaders to stop using them at any school function.

At this point, the girls hired Starnes and had an attorney from the Liberty Institute. Starnes went to court in Hardin County and got a restraining order to stop Weldon. Hardin County Judge Steven Thomas overturned the ban in May 2013. The girls resumed displaying religious-themed banners while a complicated case developed in the courts.

“There really is no precedent for this case,” Starnes said.

“The crux of the cheerleaders’ case is one question: ‘Is this private student speech or government speech?’”

The case already on the books on a subject closest to that of the cheerleaders is one dealing with prayer at a school event, Santa Fe ISD v Doe, a 2000 U.S. Supreme Court decision, Starnes said.

The Santa Fe ruling outlawed student-led prayers over the loudspeakers at football games because the district’s policy amounted to government endorsement of religion, a violation of the First Amendment’s establishment clause.

Starnes said the Santa Fe case is different from the Kountze case because of “who chose the message.” In Santa Fe, it was school policy to have a Christian prayer led by a Christian student over the public address system, making it clearly “government speech” and therefore illegal.

But in Kountze, he said, the message originated with the cheerleaders, who thought of the idea themselves, made the signs with their own supplies on their own time after school hours.

If the banners are determined to be “private student speech,” then the school would have to allow them as an act of religious freedom for the cheerleaders.

But Starnes said the district is taking a unique stance -- KISD agrees that the banners are government speech, yet claim the district has the power to approve the banners if they choose.

Another big difference in the cases, the attorney said, is that the Kountze suit is in state court, not federal court like Santa Fe. That makes the parties subject to Chapter 25 of the Texas Education Code.

“Texas is unique,” said Starnes, “it has the Religious Views Anti-Discrimination Act.”

The Texas Legislature passed the Religious Views Anti-Discrimination Act in 2007. The act included a requirement that districts adopt disclaimers that separate the views of student speakers at school-sponsored events from those of the school as a way of clarifying the law after the Santa Fe decision.

“The district could have just added a disclaimer under the message (on the banners),” Starnes said. “They could have just put ‘not the position of KISD” on the banner and that would have been the end of it. But they didn’t do that. It’s very clear in the statute that they could do that, and we would not have fought that.”

Starnes is currently preparing to make that argument before the Texas Ninth District Court of Appeals in Beaumont. In the past year, in addition to the litigation filed on the cheerleaders’ behalf by Starnes and the Liberty Institute, there have been briefs from the Freedom From Religion Foundation and the ACLU. Texas Attorney General Greg Abbott has weighed in to support the cheerleaders. The cheerleaders have even appeared on national television.

Starnes said he will likely submit his appellate brief in October and the Ninth Circuit will then set a hearing date.

According to his website, David Starnes is certified by the Texas Board of Legal Specialization in Civil Trial Law and Personal Injury Trial Law and has more than 28 years of experience. The State Bar of Texas website shows that Starnes received his doctor of jurisprudence degree in 1984 from Texas Tech University.