At the Kountze Independent School District (KISD), north of Beaumont, the cheerleaders do what many cheerleaders do: hold banners that football players run through at the beginning of each game. However, these banners include quotations from the Bible, such as, “But thanks be to God which gives us Victory through our Lord Jesus Christ,” according to the court documents.

An interlocutory appeal pending before the 9th Court of Appeals in Beaumont has raised the question: Does the cheerleaders’ display of those banners violate the Establishment Clause of the First Amendment? And the same appeal has foreshadowed another question: Who will pay the legal bills of the cheerleaders who sued the school district after it temporarily banned them from using the banners?

“One thing is very clear is the Establishment Clause is not clear. Everyone recognizes the jurisprudence surrounding it as muddy,” says Thomas P. Brandt, a partner in Dallas’ Fanning Harper Martinson Brandt & Kutchin, who represents KISD.

In its brief filed on Aug. 23 with the 9th Court, KISD takes the position that it will allow the religious-themed banners and they do not violate church and state separation principles, but that the banners remain nonetheless school-sponsored speech, not private speech, as some cheerleaders argued at the trial court and are expected to argue on appeal.

The banner battle began in the fall of 2012. The Freedom From Religion Foundation, a Madison, Wis.-based separation of church and state advocacy group asked KISD to stop the cheerleaders’ use of religiously themed banners. KISD’s then-superintendent told schools to stop the cheerleaders’ use.

The KISD superintendent’s ban prompted some cheerleaders and their parents to sue the school districtin Coti Matthews et al v. Kountze Independent School District. They hired Beaumont lawyer David W. Starnes and sought a temporary restraining order.

356th District Judge Steven Thomas issued the TRO in October 2012, barring KISD from preventing the cheerleaders from displaying the banners.

In the ensuing nine months, KISD, parents, cheerleaders and others battled in court. The American Civil Liberties Union and its Texas chapter intervened in the litigation, arguing the banners represented school-sponsored speech and violated the Establishment Clause. The Texas Attorney General’s Office also intervened in support of the plaintiff cheerleaders and parents, arguing in a petition filed Oct. 16, 2012, that it needed “to ensure all students enrolled in Texas’s public schools can voluntarily exercise their religious liberties and the religious beliefs of their choosing on equal footing with the exercise of non-religious or secular viewpoints.”

On May 8, Thomas issued a summary judgment order in favor of the cheerleaders, declaring that neither the Establishment Clause of the First Amendment “nor any other law” prohibits the cheerleaders from using the religious-themed banners at school sporting events.

Thomas’ order reserved for “further consideration,” the question of attorney fees. The cheerleaders and parents who had sought the TRO and summary judgment had requested attorney fees.

Joining Starnes as attorneys for the cheerleaders and parents suing KISD are The Liberty Institute, a Plano-based nonprofit advocacy group for religious expression, and James Ho, a partner in Gibson Dunn & Crutcher in Dallas.

Starnes, Ho and Hiram Sasser, who is director of litigation at the Liberty Institute, all say they represent the plaintiff parents and cheerleaders on a pro bono basis. But they say they expect eventually to have a court grant their request that the school district pay their fees.

On May 23, KISD filed a notice of appeal of Thomas’ ruling with the 9th Court. In an Aug. 23-filed appellate brief KISD sought reversal of Thomas’ order and clarifications from the appeals court. In the brief, KISD states it has decided to allow the religious-themed banners to be displayed but it argues the banners are school-sponsored speech and that the school district must maintain ultimate oversight and veto power of banner messages at football games. The KISD brief argues that the religious messages on the banners do not violate the Establishment Clause because they do not establish a religion in the community.

The KISD brief also argues that Thomas’ order did not grant relief to the cheerleaders and parents on “the central argument of their case: their claim that the banners were ‘private speech.’ “

“The run-through banners represent the school, not the individual cheerleaders,” the KISD brief states, noting the potential problems that could arise if the school lost oversight of the banners, including opening the door for unsportsman-like or even racist messages.

In an amicus brief filed on Sept. 5, the ACLU and its Texas chapter likewise argue that the banners represent school-sponsored speech. But the ACLU brief argues the banners should be banned based on the Establishment Clause’s bar to government participation in establishing religion.

The AG’s office declines to comment on the appeal. In a statement posted online after Thomas issued his May summary judgmentorder, the AG’s office states: “This is a victory for religious liberties and for high school cheerleaders who stood up to powerful forces that tried to silence their voices.”

Starnes and Sasser say the KISD appellate brief’s arguments conflict, since religious-themed school-sponsored speech has been deemed unconstitutional. The cheerleaders and parent plaintiffs believe the banners are private speech and therefore do not have to overcome any restrictions set by the Establishment Clause, their lawyers say.

Ho, who began representing plaintiffs after KISD appealed Thomas’ order, writes: “The Establishment Clause issue should be very easy. This is private speech. So there is no issue.”

ACLU of Texas Legal Director Rebecca Robertson, however, welcomes KISD’s decision to identify the banners as school-sponsored.

“I don’t see how anybody could argue that these were private speech,” she says, noting that banners are on school grounds at school events held by school-selected cheerleading squads.

When the plaintiff cheerleaders and their parents file their appellate brief, which is due Oct. 9, they will argue the banners are private speech, say Ho, Sasser and Starnes.

Ho believes the school district may by appealing have invited a big ticket legal bill. “The district court concluded that the cheerleaders are allowed to speak. And the school district says it agrees. So there shouldn’t be any appeal. If the school district wants to minimize attorney’s fees, they should drop the appeal,” Ho writes.