Here is the controversy: Some cheerleaders at a Texas public school wish to display signs and banners with religious messages on them at high school football games (e.g., “If God is for us, who can be against us?”). Nothing about the signs involves the public school, other than that the venue in which they are displayed is at a public school football game. The public school superintendent banned the signs. And a state court judge in Texas has issued a temporary injunction against the government from forbidding the cheerleaders from displaying their signs. The injunction is here, but it says nothing about the merits.
And here is the New York Times story today: It doesn’t really discuss the law much but instead paints a sort of man-of-conscience-against-a-hostile-world picture of the superintendent, just as it did for a recent story in Rhode Island involving a student who opposed the display of some religious language on a sign in a public school. I’m sure the superintendent in the Texas case is a very nice man who is just trying to do his job. It’s probably too much to ask of the Times that it stop the irritating practice of painting American communities as villains. They’re probably just composed of people who are doing their best to live according to their own lights of the good life, and in ways that at least one court believes the law permits.
It’s a shame that the Times story doesn’t discuss more about the law. From what I understand (though I could be wrong) the issue was originally that legal counsel for the superintendent believed that the banners violated the Establishment Clause as interpreted by the Supreme Court in the Santa Fe case. But at some point that defense to the lawsuit dropped out, and now both sides agree that the signs do not violate the Establishment Clause (I find this representation at p.5 of this motion by the Texas Attorney General to intervene in the case). It seems that the issue now turns on whether the speech here is characterized as public or private speech. But this is confusing to me, because Santa Fe involved exactly the issue of whether the speech was public or private — the majority and the dissent disagreed on that question. The Court in Santa Fe held that the school-instituted two-step election process, in which a student vote about whether a message would be communicated was followed by another vote about who would deliver the message, was basically the government’s impermissibly majoritarian policy and therefore government speech. Obviously the situation is different in this case, and it would require a significant extension of Santa Fe to cover the cheerleaders’ signs. But I do not understand why, per the representation of the Texas AG, all sides agree that Santa Fe does not apply. Perhaps readers can offer illumination.
UPDATE: Do see Paul Horwitz’s discussion of the case here. Paul points out that the NY Times also has an editorial out today in which it characterizes the cheerleaders’ actions as a violation of Santa Fe (as explained above, I do not think this is accurate if the facts are as reported), and official support for the cheerleaders’ actions as follows: “These officials are blind to the dangers to religious freedom when government shifts from being neutral about religion to favoring a particular one. “