CAUSE NO on behalf of her minor child, REBEKAH RICHARDSON; SHYLOA SEAMAN, on behalf of her minor child,

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1 CAUSE NO COTI MATTHEWS, on IN THE DISTRICT COURT behalf of her minor child, MACY MATTHEWS; RACHEL DEAN, on behalf of her minor child, REAGAN DEAN; CATHIE FLOWER, on behalf of her minor child, HARDIN COUNTY, TEXAS KENNEDY FLOWER; ELIZABETH O. HADNOT, on behalf of her minor child, T MIA HADNOT; KIM HAYNES, on behalf of her minor child, ADRIANNA HAYNES; 356th Judicial District RHONDA KEMP, on behalf of her minor child, MORGAN DEROUEN; CHARLES & CHRISTY LAWRENCE, on behalf of their minor child, ASHTON LAWRENCE; PATTY LEDOUX, on behalf of her minor child, KAYLEE LEDOUX; TESSANDRA MCDANIEL, on behalf of her minor child, TEYONCE MCDANIEL; TONYA MOFFETT, on behalf of her minor child, KIEARA MOFFETT; BRETT PAGE, on behalf of his minor child, CASSANDRA PAGE; BETH RICHARDSON, on behalf of her minor child, REBEKAH RICHARDSON; SHYLOA SEAMAN, on behalf of her minor child, AYIANA GALLASPY; MISTY SHORT, on behalf of her minor child SAVANNAH SHORT; and PATRICE SONNIER, on behalf of her minor child

2 NAHISSAA BILAL, Plaintiffs, v. KOUNTZE INDEPENDENT SCHOOL DISTRICT and KEVIN WELDON, in his individual and official capacity as Superintendent, Defendants. SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS APPLICATION FOR TEMPORARY INJUNCTION TABLE OF CONTENTS I. PRELIMINARY STATEMENT AND SUMMARY...7 II. FACTUAL BACKGROUND...9 A. Cheerleaders at KISD and their Run-Through Banners... 9 B. Defendants Unlawful Restriction of Plaintiff Cheerleaders Speech 13 C. Necessity for Temporary Injunction D. The September 27, 2012, letter from the Texas Attorney General in support of Plaintiff Cheerleaders right to express a religious viewpoint on banners III. LEGAL STANDARD...15 IV. ARGUMENT AND AUTHORITIES...16 A. Plaintiffs Have Causes of Action against Defendants B. Plaintiffs are Entitled to the Relief Sought The messages contained on the run-through banners are private student speech protected by the Texas Religious Viewpoints Anti-Discrimination Act Defendants censorship of the cheerleaders religious speech is a violation of article I, section 8 of the Texas Constitution a. The Texas Constitution provides enhanced protection for prior restraints on speech that is stronger than that provided by the federal constitution, fully protecting the cheerleaders from a ban on their religious speech Page 2 of 47

3 b. Defendants viewpoint discrimination is a separate and distinct violation of article I, section 8 of the Texas Constitution KISD s policy prohibiting religious messages violates the Texas Religious Freedom Restoration Act a. The Defendants policy prohibiting religious speech fails strict scrutiny i. The District can point to no compelling governmental interest ii. The District cannot show that any interest is advanced by the least restrictive means Defendants religious-viewpoint discrimination denies a benefit to Plaintiff Cheerleaders in violation of Texas Civil Practice and Remedies Code section Defendants prohibition on religious speech on the run-through banners is a violation of article I, section 6 of the Texas Constitution Defendants prohibition on religious speech on the run-through banners violates of article I, section 3 of the Texas Constitution Defendants Stated Defenses are Meritless a. The messages on the Plaintiffs banners is not government speech b. Sante Fe does not apply c. Students can engage in speech during school events without the speech being school-sponsored, government speech C. A probable, imminent, and irreparable injury will result if the temporary injunction is not granted V. CONCLUSION...46 TABLE OF AUTHORITIES CASES Adler v. Duval County Sch. Bd., 250 F.3d 1330 (11th Cir. 2001) (en banc)... 41, 42 Barr v. City of Sinton, 295 S.W.3d 287 (Tex. 2009)... 29, 30, 31, 34 Bell v. Low Income Women of Tex., 95 S.W.3d 253 (Tex. 2002) Page 3 of 47

4 Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1968) Burson v. Freeman, 504 U.S. 191 (1992) Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002)... 15, 16 Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995)... 25, 41 Child Evangelism Fellowship of Md., Inc. v. Montgomery County Pub. Schs., 373 F.3d 589 (4th Cir. 2004) Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330 (5th Cir. 2001) Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) City of Boerne v. Flores, 521 U.S. 507 (1997) Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425 (Tex. 1998) Cornelius v. NAACP Legal Defense & Educ. Fund Inc., 473 U.S. 788 (1985)... 26, 27, 28 Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992) Doe v. Sch. Dist. of the City of Norfolk, 340 F.3d 605 (8th Cir. 2003) Elrod v. Burs, 427 U.S. 347 (1976) Employment Division v. Smith, 494 U.S. 872 (1990)... 29, 30 Ex parte Tucci, 859 S.W.2d 1 (Tex. 1993)... 16, 17, 23, 24, 25 Good News Club v. Milford Cent. Sch. Dist., 533 U.S. 98 (2001)... 25, 28, 32, 41 Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d 713 (Tex. App. Houston [1st Dist.] 1992, no writ) HEB Ministries, Inc. v. Tex. Higher Educ. Coordinating Bd., 235 S.W.3d 627 (Tex. 2007)... 36, 37 Hobbs v. Hawkins, 968 F.2d 471 (5th Cir. 1992)... 26, 29 Page 4 of 47

5 In re Wash. State Apple Adver. Comm n, 257 F. Supp. 2d 1290 (E.D. Wash. 2003) Ingebretson v. Jackson Pub. Sch. Dist., 88 F.3d 274 (5th Cir. 1996) Johanns v. Livestock Mktg., Assoc., 544 U.S. 550 (2005) Lamb s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993)... 25, 27, 28, 32, 33 Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) Memphis Community Sch. Dist. v. Stachua, 477 U.S. 299 (1986) Mentavlos v. Anderson, 249 F.3d 301 (4th Cir. 2001) Merced v. City of Euless, 577 F.3d 578 (5th Cir. 2009)... 30, 31, 34 Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618 (5th Cir. 1985) Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011) (en banc)... 17, 25 Morse v. Fredrick, 551 U.S. 393 (2007) O Quinn v. State Bar of Tex., 763 S.W.2d 397 (Tex. 1988) Opulent Life Church v. City of Holly Springs Miss., No , 2012 U.S. App. LEXIS (5th Cir. 2012) Pelt & Skins, LLC v. Lanreneau, 448 F.3d 743 (5th Cir. 2006) Plyler v. Doe, 457 U.S. 202 (1982) Police Dep t. of Chicago v. Mosley, 408 U.S. 92 (1972)... 25, 38 Pounds v. Katy Indep. Sch. Dist., 730 F. Supp. 2d 636 (S.D. Tex. July 30, 2010) R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) Rose v. Doctors Hosp., 801 S.W.2d 841 (Tex. 1990) Page 5 of 47

6 Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995)... 25, 26, 32, 33 Santa Fe Indep. Sch. Dist. v. Do, 530 U.S. 290 (2000)... 7, 38, 41, 43 Schneider v. New Jersey, 308 U.S. 147 (1939) Schultz, et al. v. Medina Valley Indep. Sch. Dist., No (5th Cir. June 3, 2011)... 8, 44 Shelton v. Tucker, 364 U.S. 479 (1960) Texas v. Johnson, 491 U.S. 397 (1989) The Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342 (2nd Cir. 2003) Tilton v. Marshall, 925 S.W.2d 672 (Tex. 1996) Tinker v. Des Moines, 393 U.S. 503 (1969)... 17, 21, 25, 40, 43 United States v. O Brien, 391 U.S. 367 (1968) Virginia v. Black, 538 U.S. 343 (2003) W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)... 17, 38 Walling v. Metcalfe, 863 S.W.2d 56 (Tex. 1993)... 16, 17 Widmar v. Vincent, 454 U.S. 263 (1981)... 25, 27, 28, 32 Williams v. Rhodes, 393 U.S. 23 (1968) STATUTES Article I, section 8 of the Texas Constitution Tex. Civ. Prac. & Rem. Code , 30 Tex. Civ. Prac. & Rem. Code Tex. Educ. Code et seq.... 7, 15, 19 Page 6 of 47

7 TO THE HONORABLE COURT: Plaintiffs request entry of a Temporary Injunction protecting their private religious speech as guaranteed by Texas law and the Texas Constitution, and in support thereof would respectfully show the Court as follows: I. PRELIMINARY STATEMENT AND SUMMARY Plaintiffs bring six state constitutional and statutory causes of action seeking declaratory, injunctive, and other relief. If the Court finds Plaintiffs have a probable right to the relief sought on any one of these claims, the Court should issue the temporary injunction. While this brief extensively outlines each cause of action and why Plaintiffs should prevail, the Court could easily limit its analysis to the cause of action referenced by the Texas Attorney General in his letter this week to Defendants the statutory requirement that Defendants 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 (See Attorney General Letter, attached hereto as Exhibit A.) This statute is part of the comprehensive Religious Viewpoints Anti-Discrimination Act (the Act ), which Governor Perry signed into law in 2007 to address precisely this issue: to lawfully protect religious speech of students participating in non-curricular activities such as football games and graduation ceremonies after the United States Supreme Court decision in Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000). Defendants only legal defense to this statute is to raise, for the first time in any Texas court, a federal constitutional challenge to the validity of the Act. To Plaintiffs counsel s knowledge, no other party has ever challenged the constitutionality of the Act in a Texas state court until now. However, in federal court just last year, a federal district Page 7 of 47

8 court judge issued an order banning religious speech by speakers at a high school graduation a more difficult case than the one before this Court. After an emergency appeal and within days, the U.S. Court of Appeals for the Fifth Circuit issued a rare emergency rebuke and reversal of the district court. There was extensive briefing from the Texas Attorney General and other parties that Texas state law expressly provides that student speakers at school events are not speaking on behalf of their school district-- but instead are engaged in private speech, which is fully protected under federal law. The Fifth Circuit held, [W]e are not persuaded that plaintiffs [those seeking to ban the student-led prayers] have shown that they are substantially likely to prevail on the merits, particularly on the issue that the individual prayers or other remarks to be given by students at graduation are, in fact, school-sponsored. Schultz, et al. v. Medina Valley Indep. Sch. Dist., No (5th Cir. June 3, 2011) (order dissolving temporary restraining order and preliminary injunction). (emphasis added). Defendants here (a Texas school district and its superintendent) are taking the extraordinary position that the Texas Attorney General is wrong, the Texas Legislature passed an unconstitutional statute, and Governor Perry erroneously signed the legislation into law. Defendants urge this Court to now become the first Court to declare the Act unconstitutional and to refuse to uphold the framework set up by the State of Texas and advocated by the Texas Attorney General to lawfully allow student religious speech, all post-santa Fe. This Honorable Court should refuse Defendants invitation and grant the temporary injunction requested by Plaintiffs. Page 8 of 47

9 II. FACTUAL BACKGROUND 1 A. Cheerleaders at KISD and their Run-Through Banners At all material times, Plaintiffs Macy Matthews, Reagan Dean, Kennedy Flower, T Mia Hadnot, Adrianna Haynes, Morgan Derouen, Ashton Lawrence, Kaylee Ledoux, Teyonce McDaniel, Kieara Moffett, Cassandra Page, Rebekah Richardson, Ayiana Gallaspy, Savannah Short, and Nahissaa Bilal ( Plaintiff Cheerleaders ) have been properly enrolled as students at Kountze High School ( KHS ), a school operated by and a part of Kountze Independent School District ( KISD ). (Pet. 5.1). Plaintiff Cheerleaders have been participating as cheerleaders at KISD. (Pet. 5.2). Each of the Plaintiff Cheerleaders is an adherent of the Christian faith and holds sincere religious beliefs concerning the expression of her Christian faith. (Pet. 5.3). Cheerleading is a non-curriculum related activity at KHS. (Pet. 5.2). There is no cheerleading class, and students do not receive class credit or any grade for their participation in the cheerleading team. (Pet. 5.5). Because cheerleading is a noncurriculum related activity, it is not intended to impart knowledge or skills to the students; instead, it is a fun activity that encourages spirit and enthusiasm among KHS students. (Pet. 5.5). All cheerleading practices take place on the participants own time, either during the summer months or after a school day. (Pet. 5.6). Cheerleading practice never takes place during school or instructional hours. (Pet. 5.6). 1 In support of this brief, Plaintiffs incorporate the verified factual allegations set forth in Plaintiffs First Amended Petition, Application for Temporary Injunction, and Application for Permanent Injunction (the Petition or Pet. ) submitted to the Court concurrently herewith. Page 9 of 47

10 The cheerleaders are selected by neutral criteria without the involvement of any school official. (Pet. 5.7). On an annual basis, any student who wishes to try out for the team may sign up for tryouts. (Pet. 5.7). Lamar University cheerleaders then serve as judges to select the team to ensure that the selection process is impartial. (Pet. 5.7). Selection on the team is in no way tied to the students grades or performance in any class. (Pet. 5.7). No school official is involved in the selection process. (Pet. 5.7). The cheerleading team is student-led and student-run. (Pet. 5.8). Each week, two to three different cheerleaders lead practice, direct the making of any banners or runthroughs, and lead any other activities for the team, such as planning pep rallies. (Pet. 5.8). The cheerleaders take turns leading the team each week. (Pet. 5.8). The cheerleaders purchase their own uniforms with private funds. (Pet. 5.9). Two faculty sponsors, Tonya Moffett and Beth Richardson, who are also parents of two cheerleaders, supervise the team to ensure a safe, respectful, and orderly environment. (Pet. 5.10). The faculty sponsors are present at the practices in only a nonparticipatory, custodial capacity. (Pet. 5.10). Because the team is student-led and student-run, the faculty sponsors do not direct or coach the cheerleaders and do not participate in the making of any of the run-through banners. (Pet. 5.11). One of the activities of the cheerleading squads at Kountze High School is the production and use of a run-through banner, measuring approximately 30 feet wide by 10 feet high, which is traditionally held up by the cheerleaders for the first football team members to charge through as the players enter the field before each game. (Pet. 5.12). Run-through banners are not required by the school. (Pet. 5.13). The cheerleaders voluntarily choose to make them as an encouragement to the athletes and fans. (Pet. Page 10 of 47

11 5.13). All materials used to produce the run-through banners, which consist of banner paper and paint supplies, are purchased with private funds. (Pet. 5.14). No school funds are used to purchase the supplies for the cheerleaders banners. (Pet. 5.15). The long tradition of the cheerleading squad s production of run-through banners goes back at least two decades, although throughout the years, the messages on the banners have varied. (Pet. 5.16). The cheerleaders in charge of practice each week, in conjunction with the rest of the squad, decide what message to put on each banner. (Pet. 5.17). No faculty sponsor or any other school official has control over the content or message of each run-through banner, aside from ensuring that the message does not violate school policy contained in FNA(LOCAL) and FNA(LEGAL), attached to the Petition as Exhibit A. (Pet. 5.18). This policy provides that student messages may not: be obscene, vulgar, offensively lewd, or indecent; likely result in a material and substantial interference with school activities or the rights of others; promote illegal drug use; violate the intellectual property rights, privacy rights, or other rights of another person; contain defamatory statements about public figures or others; or advocate imminent lawless action or are likely to incite or produce such action. (Pet. 5.18). The run-through banners do not contain the school or district s name. (Pet. 5.19). The run-through banners are always made by the cheerleaders during non-school hours, such as after school or during the summer months. (Pet. 5.20). The content of each banner is decided solely by the cheerleaders themselves and is purely student-led, student-initiated, private speech. (Pet. 5.21). The messages on the banners are the Page 11 of 47

12 students own words and are intended to address the audience of fellow students and fans. (Pet. 5.21). In previous years, messages on the run-through banners typically included negative language about opposing teams, such as Scalp the Indians and Pluck the Eagles. (Pet. 5.22). During this 2012 football season, the current squad of cheerleaders decided to begin including an inspiring message, expressed from a religious viewpoint, on each run-through banner as a way to express their positive encouragement and well wishes to the athletes and fans. (Pet. 5.23). The cheerleaders decided positive expressions would serve as a model of good sportsmanship, and would be preferable over the typical derogatory language that is customarily seen on other run-through banners. (Pet. 5.24). As adherents of the Christian faith, Plaintiff Cheerleaders hold a sincere religious belief concerning the expression of their Christian faith on the banners, as a means of following the admonitions and tenets of their faith. (Pet. 5.25). Prohibiting Plaintiff Cheerleaders from expressing their sincerely-held religious beliefs on the banners substantially burdens their religious beliefs and practice. (Pet. 5.26). Banners including various encouraging messages from a religious viewpoint, selected solely by Plaintiff Cheerleaders and painted by their own hands, were used at the first three KHS varsity football games this season, on August 31, September 7, and September 14. (Pet. 5.27). Plaintiff Cheerleaders created and used similar run-through banners this season at various other high school sporting events, and will again in the future. (Pet. 5.28). Page 12 of 47

13 Plaintiff Cheerleaders have received many positive comments and public encouragement for their banners and display of good sportsmanship by athletes and fans of both the home and opposing teams, and they have not received any complaints about the banners from any individual. (Pet. 5.29). Plaintiff Cheerleaders intend to create and use additional banners with messages expressed from a religious viewpoint for each football game this season and for various other sporting events now and in the future. (Pet. 5.30). B. Defendants Unlawful Restriction of Plaintiff Cheerleaders Speech On September 18, 2012, during school hours, a school administrator made an announcement over the KHS intercom system that the cheerleaders would henceforth be prohibited from including their private religious messages on the run-through banners. (Pet. 5.31). Upon information and belief, Defendant Weldon instructed this school administrator to make the intercom announcement. (Pet. 5.32). By making the announcement and issuing this directive, Defendants are seeking to censor and/or exclude Plaintiff Cheerleaders private religious speech in an unconstitutional manner. (Pet. 5.33). Defendants have not restricted any other content, viewpoint, or subject matter, or any other students speech, nor issued similar directives regarding other students banners, displays, or artwork. (Pet. 5.34). As a result of Defendants directive and actions, Plaintiff Cheerleaders are upset and fearful of adverse disciplinary action by Defendants and other school officials if they disobey the directive. (Pet. 5.35). As a result of Defendants directive and actions, Plaintiff Cheerleaders have had their free speech and religious exercise chilled. (Pet. 5.36). Defendants directive and actions constitute a discriminatory policy and practice of KISD. (Pet. 5.37). Upon information and belief, Defendant Weldon has conspired Page 13 of 47

14 with at least one other school official or individual to deny Plaintiffs their rights to free speech, free exercise of their religion, and equal protection of the law. (Pet. 5.38). Because of Defendants intimidation, censorship, and deliberate indifference to the law and Plaintiffs and others constitutional rights, Plaintiff Cheerleaders and others have suffered irreparable damage and been chilled in the exercise of their fundamental rights. (Pet. 5.39). Defendants intimidation, censorship, and deliberate indifference to the law is a substantial burden on the free exercise of Plaintiff Cheerleaders religion and inhibits their fundamental rights to freely express their religious faith. (Pet. 5.40). C. Necessity for Temporary Injunction At the KHS varsity football games scheduled for this year, Plaintiff Cheerleaders desire and intend to make and use their handmade run-through banners that include inspiring messages expressed from a religious viewpoint. (Pet. 5.41). The customs, practices and stated policies and directives of Defendants specifically prohibit this form of free speech and religious expression. (Pet. 5.42). Thus, the Constitutional and statutory rights of the Plaintiff Cheerleaders are being violated by Defendants and their officials, and Plaintiff Cheerleaders will suffer additional, immediate, irreparable injury if this Honorable Court does not grant a Temporary Injunction. (Pet. 5.43). D. The September 27, 2012, letter from the Texas Attorney General in support of Plaintiff Cheerleaders right to express a religious viewpoint on banners On September 27, 2012, Texas Attorney General Greg Abbott sent a letter to Superintendent Kevin Weldon in support of the KISD cheerleaders (see attached Exhibit B). Attorney General Abbott stated in this letter that the cheerleaders banners are the religious speech of individual students, which enjoy protection under the Free Speech and Free Exercise Clauses of the First Amendment. He further stated that allowing the Page 14 of 47

15 cheerleaders to express their private beliefs does not create any Establishment Clause issues: 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. Attorney General Abbott also commented on the protections for religious viewpoints in the Texas Education Code: 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 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 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. III. LEGAL STANDARD Plaintiffs request a temporary injunction under section of the Texas Civil Practice and Remedies Code. A temporary injunction s purpose is to preserve the status quo of the litigation s subject matter pending a trial on the merits. Butnaru v. Ford Motor Co.,84 S.W.3d 198, 204 (Tex. 2002). The prerequisites for injunctive relief are: (1) a cause of action against the defendants; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Page 15 of 47

16 Id.; Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993). At the hearing for a temporary writ of injunction, the applicant[s] [are] not required to establish that [they] will prevail on final trial; the only question before the trial court is whether the applicant[s] [are] entitled to preservation of the status quo pending trial on the merits. Walling, 863 S.W.2d at 58 (internal citations omitted). The evidence and authorities submitted demonstrate that Plaintiffs have satisfied these criteria and are entitled to the relief requested. IV. ARGUMENT AND AUTHORITIES 2 A. Plaintiffs Have Causes of Action against Defendants As outlined in the Petition, Plaintiffs have six causes of action against the Defendants based upon Texas constitutional and statutory law. Specifically, Plaintiffs plead that the Defendants policy prohibiting religious speech on run-through banners violates article I, sections 3, 6, and 8 of the Texas Constitution; chapters 106 and 110 of the Texas Civil Practice and Remedies Code; and chapter 25 of the Texas Education Code. (Pet ). Additionally, Plaintiffs seek declaratory relief, a permanent injunction, and damages. (Pet ). 2 All claims are brought under the Texas Constitution and Texas state law (see Pet.). Any federal cases cited are referenced for only interpretative assistance regarding Plaintiffs claims brought under Texas law, with recognition that the protection for religious exercise under the Texas Constitution is co-extensive with the protection afforded under the federal Free Exercise Clause and that the protection for free speech under the Texas Constitution is greater than that provided by the federal Free Speech Clause. Tilton v. Marshall, 925 S.W.2d 672, 677 n.6 (Tex. 1996) ( [W]e assume without deciding that the state and federal free exercise guarantees are coextensive with respect to his particular claims. ); Ex parte Tucci, 859 S.W.2d 1, 5 (Tex. 1993) ( With its broad command that every person shall be at liberty to speak opinions on any subject, article one, section eight provides greater rights of free expression than its federal equivalent. ). Page 16 of 47

17 B. Plaintiffs are Entitled to the Relief Sought Plaintiffs have a right to the relief sought because they are likely to prevail on the merits of their claims. Plaintiffs, however, do not have to prove that they will ultimately prevail in order to obtain a temporary injunction. See Walling, 863 S.W.2d at 58. As a general matter, it is a well-established principle of law that students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. Tinker v. Des Moines, 393 U.S. 503, 506 (1969). Under Tinker, public school officials are only permitted to prohibit student speech if it materially and substantially disrupts the operations of the school. Id. at 513. Under Texas law, free speech rights are more expansive than under federal constitutional law, thus federal cases interpreting federal free speech rights establish the minimum standards for free speech under the Texas Constitution. Ex parte Tucci, 859 S.W.2d at 5 ( With its broad command that every person shall be at liberty to speak opinions on any subject, article one, section eight provides greater rights of free expression than its federal equivalent. ). Courts have repeatedly affirmed the vital importance of protecting free speech in our public schools. Shelton v. Tucker, 364 U.S. 479, 487 (1960) ( The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. ). That schools are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes. Morgan v. Swanson, 659 F.3d 359, 396 (5th Cir. 2011) (en banc) (Elrod, J., concurring) (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943)). There should be no question that the Plaintiff Cheerleaders have constitutional and statutory rights in public schools, including at high school football games. Plaintiffs Page 17 of 47

18 advance six independent causes of action. The Court may enter the temporary injunction if it finds in favor of Plaintiffs on any of the six causes of action. If the Court finds in favor of Plaintiffs on any one cause of action, it need not consider the remaining causes of action. 1. The messages contained on the run-through banners are private student speech protected by the Texas Religious Viewpoints Anti- Discrimination Act Just as the Attorney General advances here the messages contained on the Plaintiffs run-through banners are properly classified as private-student speech not government-sponsored speech because, under state law, KISD created a limited-public forum for student speakers at all school events. When the government has created a limited-public forum, the speech in that forum is fully-protected, private speech. The Court need not engage in further analysis beyond the Religious Viewpoints Anti-Discrimination Act codified in chapter 25, subchapter E of the Texas Education Code. Texas state law dictates that student speech at school events, such as football games, is private expression. The Texas Legislature explicitly enacted chapter 25, subchapter E of the Texas Education Code to ensure that school districts do not discriminate against religious speech. Indeed, section states that the goal of this state law is [t]o ensure that the school district does not discriminate against a student s publicly-stated, voluntary expression of a religious viewpoint. This goal of protecting religious speech is accomplished through directing Texas school districts to create limited-public forums. Section states that a school district shall adopt a policy, which must include the establishment of a limited-public forum for student speakers at all school events at which a student is to publicly speak. Page 18 of 47

19 (emphasis added). Section again affirms that [a] school district shall adopt and implement a local policy regarding a limited-public forum and voluntary, student expression of religious viewpoints (emphasis added), underscoring the duty of each district to enact such policies. Section (a) provides further details regarding the types of policies districts are required to enact. It states that the school district must provide the forum in a manner that does not discriminate against a student s voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject; and provide a method, based on neutral criteria, for the selection of student speakers at school events. Finally, section provides broad general protections for student religious viewpoints. It states: The school district shall treat a student s voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner the district treats a student s voluntary expression of a secular or other viewpoint on an otherwise permissible subject and may not discriminate against the student based on a religious viewpoint expressed by the student on an otherwise permissible subject. The Texas Education Code requires courts to treat student speech at football games as private speech fully protected under the law, so that no court will characterize such expression as government speech or school-sponsored speech under Santa Fe. The only way for Defendants to prevail in the present case is for this Court to take the extraordinary position that the Texas Education Code is in itself a violation of the federal Constitution, something the Texas Attorney General refutes in his letter. As required by the Texas Education Code, KISD did implement official written policies establishing a limited-public forum for student speakers at school events, such as football games, thereby ensuring that any religious message by a student or group of Page 19 of 47

20 students would not be attributable to the school district. (See FNA(LOCAL), attached to the Petition as Exhibit B) Thus, even if state law did not protect Plaintiff Cheerleaders religious speech - which it clearly does -, Defendant KISD s own policies prohibit censorship of the cheerleaders religious speech on the run-through banners. The policy begins by affirming section of the Texas Education Code: The District shall treat a student s voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner the District treats a student s voluntary expression of a secular or other viewpoint on an otherwise permissible subject and shall not discriminate against the student based on a religious viewpoint expressed by the student on an otherwise permissible subject. Student Expression of Religious Viewpoints, FNA(LOCAL), attached as Exhibit B. The Defendants written policy continues by stating that: The District hereby creates a limited public forum for student speakers at all school events at which a student is to publicly speak. Id. The policy defines school event as a school-sponsored event or activity that does not constitute part of the required instruction for a segment of the school curriculum, regardless of whether the event takes place during or after the school day. Id. The policy defines to publicly speak as address an audience at a school event using the student s own words. Id. The policy specifically requires that student speakers shall be given a limited public forum to introduce high school football games. Id. In addition to these student speakers, the policy creates a limited-public forum for other student speakers. It states that: Certain students who have attained special positions of honor in the school have traditionally addressed school audiences from time to time as a tangential component of their achieved positions of honor, such as the captains of various sports teams, student council officers, class officers, homecoming kings and queens, prom kings and queens, and the like, and Page 20 of 47

21 have attained their positions based on neutral criteria. Nothing in this policy eliminates the continuation of the practice of having these students, regardless of grade level, address school audiences in the normal course of their respective positions. The District shall create a limited public forum for the speakers and shall treat a student s voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner the District treats a student s voluntary expression of a secular or other viewpoint on an otherwise permissible subject and shall not discriminate against a student based on a religious viewpoint expressed by the student on an otherwise permissible subject. Id. (emphasis added) Here, the school expressly created a limited-public forum for the cheerleaders to express their own messages. A football game is a school event that does not constitute part of the required instruction for a segment of the school s curriculum, and the policy even explicitly states that it applies to high school football games. Id. The cheerleaders publicly speak 3 to the audience using their own words, not the words of the school. See id. The cheerleaders are selected by neutral criteria that is unrelated to the message they wish to place on the banners. Finally, the policy affirms the District may not discriminate against student speech from a religious viewpoint expressed on an otherwise permissible subject. Id. By its own policy, the District created a limited-public forum for the cheerleaders to speak. Therefore, Defendants are prohibited by their own policy from treating the 3 There should be no question that publicly speak[ing] includes both written speech on a banner as well as oral expression. These two forms of speech are treated the same under the federal free speech analysis. Virginia v. Black, 538 U.S. 343, 358 (2003) ( The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech. ) (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992); Texas v. Johnson, 491 U.S. 397, (1989); United States v. O Brien, 391 U.S. 367, (1968); Tinker, 393 U.S. at 505). Page 21 of 47

22 cheerleaders religious speech differently than any other speech. 4 Incredibly, in Defendants Original Answer, Affirmative Defenses, Jury Demand and Special Exceptions (the Answer), Defendants appear to argue that the school s own policy violates the federal constitution and that the Court should hold the school s own policy, which KISD enacted as required by state law, to be a violation of the separation of church and state. (Answer 3). The Court should decline Defendants remarkable invitation to be first court to make such a determination. 2. Defendants censorship of the cheerleaders religious speech is a violation of article I, section 8 of the Texas Constitution. According to the Texas Supreme Court, article I, section 8 of the Texas Constitution provides greater free-speech protections than does the First Amendment to the United States Constitution, particularly for prior restraints on speech. O Quinn v. State Bar of Tex., 763 S.W.2d 397, 402 (Tex. 1988) ( This court has determined on several occasions that the Texas Bill of Rights affords protection beyond that provided by the United States Constitution. [I]t is quite obvious that the Texas Constitution s affirmative grant of free speech is more broadly worded than the first amendment s proscription of Congress from abridging freedom of speech. It is equally obvious that the framers of the first Texas Constitution were quite aware of the difference. ). Defendants censorship of the cheerleaders religious speech violates the Texas free speech clause in two independent ways. First, it is an unlawful prior restraint on speech. Second, it is viewpoint discrimination in a limited-public forum. 4 Additionally, FNA(LEGAL) affirms that students have free speech rights in public schools, that the school shall not discriminate against religious viewpoints expressed, and that limited public forums shall be used to ensure that religious viewpoints are protected. FNA(LEGAL), attached to the Petition as Exhibit B. Page 22 of 47

23 a. The Texas Constitution provides enhanced protection for prior restraints on speech that is stronger than that provided by the federal constitution, fully protecting the cheerleaders from a ban on their religious speech. When a government entity or a government official issues a blanket ban on speech before it is uttered, it is an unconstitutional prior restraint of speech. Davenport v. Garcia, 834 S.W.2d 4, 9 (Tex. 1992) ( Under our broader guarantee, it has been and remains the preference of this court to sanction a speaker after, rather than before, the speech occurs. This comports with article one, section eight of the Texas Constitution, which both grants an affirmative right to speak on any subject, but also holds the speaker responsible for the abuse of that privilege. The presumption in all cases under section eight is the pre-speech sanctions or prior restraints are unconstitutional. ); Ex parte Tucci, 859 S.W.2d at 5 ( With its broad command that every person shall be at liberty to speak opinions on any subject, article one, section eight provides greater rights of free expression than its federal equivalent. Its language demonstrates Texas strong and longstanding commitment to free speech. Relying upon this fundamental state guarantee, our courts have repeatedly rejected both legislative and judicial attempts to restrict expression. (internal cites and quotes omitted)); Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 434 (Tex. 1998) ( The cases in which this Court has held the Texas Constitution to create a higher standard than the First Amendment have involved prior restraints in the form of court orders prohibiting or restricting speech. Our opinion in Davenport emphasized the literal text of our state constitutional guarantee in applying a heightened scrutiny to prior restraints. (internal cites omitted)). Page 23 of 47

24 In the present case, there is no question that Defendants imposed an unconstitutional prior restraint on free speech when they acted to prohibit religious messages on cheerleader banners at all future football games. Article I, section 8 of the Texas Constitution provides: Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments of libels, the jury shall have the rights to determine the law and the facts, under the direction of the court, as in other cases. Defendants prohibition of the Cheerleaders display of any sign that bears a message from a religious viewpoint is a prior restraint on free speech and is thus invalid under the Texas Constitution. The Texas Supreme Court, applying article I, section 8 of the Texas Constitution, has held that even in the case of speech that will cause imminent and irreparable harm, prior restraints on speech may be applied only if those restraints are the least restrictive means of protecting against the alleged harmful effect. Ex parte Tucci, 859 S.W.2d at 5 6 ( Freedom of expression may not be restricted solely on grounds that its exercise will have the effect of producing imminent and irreparable harm. Restraints may be imposed only if the injunctive relief granted encompasses the least restrictive means of protecting against the alleged harmful effect. [O]ur state constitution requires that we enforce its stringent preference for freedom of expression even for those who advocate interference with other constitutional rights. ). As stated in section IV(B)(3)(a)(ii) of this brief, infra, the Defendants policy censoring religious speech is not the least restrictive means of achieving any stated goal. Page 24 of 47

25 Therefore, Defendants policy is an unlawful prior restraint on Plaintiffs Cheerleaders speech and cannot stand. b. Defendants viewpoint discrimination is a separate and distinct violation of article I, section 8 of the Texas Constitution. The Texas Supreme Court has held that the Texas Constitution provides greater rights of free expression than its federal equivalent. Ex parte Tucci, 859 S.W.2d at 5. Thus, this Court may properly analyze Section 8 of the Texas Constitution in light of the federal interpretation of the federal Free Speech Clause. It is a bedrock principle of federal constitutional law that viewpoint discrimination is unlawful. E.g., Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 828 (1995) ( It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. ); Police Dep t. of Chicago v. Mosley, 408 U.S. 92, 95 (1972) ( [A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. ). Furthermore, it is clear that religious speech is speech made from a specific viewpoint. Good News Club v. Milford Cent. Sch. Dist., 533 U.S. 98 (2001); Lamb s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Widmar v. Vincent, 454 U.S. 263 (1981). Accordingly, the Supreme Court has held that: Our precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression. Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995). And, importantly, [t]he right to be free from viewpoint discrimination is no less important in our public schools. Morgan, 659 F.3d at 402; Tinker, 393 U.S. at 509. Page 25 of 47

26 Further, the government may not discriminate against a speaker because of his or her viewpoint, regardless of whether the government s action involves a public, designated, limited, or nonpublic forum or a tax subsidy or other governmental funding. Rosenberger, 515 U.S. at 828; Cornelius v. NAACP Legal Defense & Educ. Fund Inc., 473 U.S. 788, 812 (1985) (in nonpublic forum, reasonable grounds for government action do not save viewpoint discriminatory regulation); Hobbs v. Hawkins, 968 F.2d 471, 481 (5th Cir. 1992) ( viewpoint discrimination violates the First Amendment regardless of the forum s classification ). Thus, this Court need not engage in forum analysis to hold that Defendants censorship of the cheerleaders banners is unlawful viewpoint discrimination. It is enough that the cheerleaders demonstrate the reason Defendants are banning the speech at issue is because it is speech from a religious viewpoint. But even if the Court undertook forum analysis, Defendants created a limited public forum in three ways: (1) by operation of the Texas Education Code, discussed in section IV(B)(1) supra; (2) by enacting policy FNA(LOCAL), discussed in section IV(B)(1) supra; and (3) by practice. Defendants established a limited-public forum for the cheerleaders speech at football games by practice. See Cornelius, 473 U.S. at 802 (stating that the Court has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum ) (emphasis added). [A] public forum may be created by government designation of a place or channel of communication for use by certain speakers, or for the discussion of certain subjects. Id. Here, the practice of KISD allowed certain speakers (the cheerleaders) to use their run-through banners (channel of communication) at a place Page 26 of 47

27 (football games) for the discussion of certain subjects (encouraging the football teams and audience). By allowing the cheerleaders to express their own messages on their runthrough banners for over two decades without editorial control by KISD or its employees, KISD established a limited-public forum by practice. See Lamb s Chapel, 508 U.S. at 386 (finding a limited-public forum when the government allowed private speakers to use school property for meetings and entertainment); Widmar, 454 U.S. at 267 (finding a limited-public forum when a public university allowed student groups wishing to engage in private speech to use university property for meetings). Furthermore, there should be no doubt that messages on a banner could constitute a forum. The U.S. Supreme Court has stated that forum analysis is not completed merely by identifying the government property at issue. Rather, in defining the forum we have focused on the access sought by the speaker. Cornelius, 473 U.S. at 801 (emphasis added). The Supreme Court has clarified in its decisions that a forum could be anything as broad and tangible as a public park to something as narrow and intangible as a school s internal mail system, which even lacks a physical situs. See id. at Indeed, [w]hen speakers seek general access to public property, the forum encompasses that property. In cases in which limited access is sought, our cases have taken a more tailored approach to ascertaining the perimeters of a forum within the confines of the government property. Id. (emphasis added). Here, the cheerleaders are seeking the limited access of using their run-through banners for their messages. Banners are an acceptable type of forum, and in this case, one that has been designated by KISD through its longstanding practice. Because Defendants created a limited-public forum in at least Page 27 of 47

28 one way (here they did so in three independent ways), the cheerleaders speech on the run-through banners is private speech that may not be censored by Defendants. The U.S. Supreme Court has held on no less than three occasions that when the government excludes a religious viewpoint from a limited-public forum, it violates the First Amendment. Good News Club, 533 U.S. at 120 ( When [the school district] denied the [speaker] access to the [the school district s] limited-public forum on the ground that the [speaker] was religious in nature, it discriminated against the [speaker] because of its religious viewpoint in violation of the Free Speech Clause of the First Amendment. ); see also Lamb s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993). This Court should likewise hold that Defendants viewpoint discrimination against the cheerleaders religious speech, is a violation of the Texas Constitution. In this case, Defendants have issued a policy allowing the cheerleaders to express any message on their banners, except messages from a religious viewpoint. This is quintessential viewpoint discrimination. Under the school s policy prohibiting religious speech, an encouraging secular message is allowed, while the same message from a religious viewpoint is expressly prohibited. This type of viewpoint discrimination is repugnant to our Constitution. Cornelius, 473 U.S. at 806 ( [T]he government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject. ). Even if this Court holds that the banners are a nonpublic forum, KISD s policy prohibiting religious viewpoints still fails because viewpoint discrimination is a clearly established violation of the First Amendment in any forum. Chiu v. Plano Indep. Sch. Page 28 of 47