                                      In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont
                           _________________

                              NO. 09-13-00251-CV
                             _________________

        KOUNTZE INDEPENDENT SCHOOL DISTRICT, Appellant

                                        V.

    COTI MATTHEWS, ON BEHALF OF HER MINOR CHILD MACY
                MATTHEWS, ET AL, Appellees
________________________________________________________________________

                    On Appeal from the 356th District Court
                           Hardin County, Texas
                           Trial Cause No. 53526
________________________________________________________________________

                          MEMORANDUM OPINION

      This appeal is before us on remand from the Texas Supreme Court. See

Kountze Indep. Sch. Dist. v. Matthews, 482 S.W.3d 120 (Tex. App.—Beaumont

2014), rev’d and remanded, 484 S.W.3d 416 (Tex. 2016). This is an interlocutory

appeal from the trial court’s denial of Kountze Independent School District’s

(“Kountze ISD”) plea to the jurisdiction.




                                            1
      The facts of this case were set forth extensively in this Court’s previous

opinion. See Kountze Indep. Sch. Dist., 482 S.W.3d at 124–26. Therefore, we recite

only those facts relevant to the resolution of the issues presently before us. The

Appellees, consisting of parents of certain cheerleaders from Kountze High

School, on behalf of the cheerleader students (“Cheerleaders”), brought suit against

Kountze ISD and its former superintendent, Kevin Weldon, after Weldon issued a

decree that prohibited the Cheerleaders from including religious messages on run-

through banners used at the beginning of high school football games.1 After a

combined hearing on multiple motions, including Kountze ISD’s plea to the

jurisdiction, Kountze ISD’s motion for summary judgment on its request for

declaratory relief, and the Cheerleaders’ motion for partial summary judgment, the

trial court issued a partial summary judgment order on May 8, 2013. In the order,

the trial court granted, in part, Cheerleaders’ motion for partial summary judgment,


      1
         For example, during the 2012 homecoming pregame ceremony, the
Cheerleaders displayed a banner proclaiming, “I can do all things through CHRIST
which strengthens me.” The “T” in “CHRIST” was painted to resemble a wooden
cross, and the biblical citation, “Phil. 4:13,” was noted beneath the scriptural quote.
Another week, the official run-through banner declared, “But thanks be to God,
which gives us victory through our Lord Jesus Christ,” and featured a citation to
the Bible verse, “I Cor. 15:57.” In early October 2012, one run-through banner
urged, “Let us RUN with Endurance the race GOD has set Before US.” The
banner, which also cited the source for the quotation, “Hebrews 12:1,” was painted
in the school colors of red, white, and black. “A lion which is strongest among
beast & turneth not away for any. Proverbs 30:30.”
                                            2
thereby implicitly denying Kountze ISD’s plea to the jurisdiction. See Thomas v.

Long, 207 S.W.3d 334, 340 (Tex. 2006) (noting that by ruling on the merits of the

plaintiff’s claims, the trial court assumed jurisdiction and necessarily implicitly

denied the defendant’s jurisdictional challenge, providing the appellate court

jurisdiction for interlocutory appeal.).

                                     Jurisdiction

      Kountze ISD appealed the trial court’s denial of its plea to the jurisdiction.

Generally, an appeal may only be taken from a final judgment. Lehmann v. Har-

Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When there has been no conventional

trial on the merits, an order or judgment is not final for purposes of appeal unless it

actually disposes of every pending claim and party or clearly and unequivocally

states that it finally disposes of all claims and parties. Id. at 205. Appellate courts

have authority to review interlocutory orders only when authorized by statute.

Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001). Section

51.014 of the Civil Practice and Remedies Code allows an appeal from an

interlocutory order that “grants or denies a plea to the jurisdiction by a

governmental unit as that term is defined in Section 101.001[.]” Tex. Civ. Prac. &

Rem. Code Ann. § 51.014(a)(8) (West Supp. 2016). Kountze ISD is a

governmental unit under section 101.001. See id. § 101.001(3)(B) (West Supp.

                                           3
2016). Therefore, we have jurisdiction to consider the interlocutory appeal of the

trial court’s implicit denial of the plea to the jurisdiction. See id. § 51.014(a)(8).2

                                 Standard of Review

      A plea to the jurisdiction is a dilatory plea that challenges a trial court’s

authority to decide a case on the merits. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d

547, 554 (Tex. 2000). To have authority to resolve a case, a court must have

subject matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d

440, 443 (Tex. 1993). Sovereign and governmental immunity from suit deprive a

trial court of subject matter jurisdiction. Reata Const. Corp. v. City of Dallas, 197

S.W.3d 371, 374 (Tex. 2006). In a suit against a governmental entity, the plaintiff

must prove a valid waiver of immunity from suit and must plead sufficient facts to

affirmatively demonstrate the court’s jurisdiction in order to invoke the court’s

subject matter jurisdiction over the claim. Tex. Dep’t of Parks & Wildlife v.


      2
        We have no jurisdiction to consider the partial summary judgment as such
is not a final order. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.
2001). Kountze ISD contends in its brief that “[t]he order denied all relief sought
by the parties except for the relief specifically granted by the order and the relief of
attorneys’ fees. By signing the order, the [Cheerleaders] agreed to dismissal of all
their claims, except those included in the trial court’s summary judgment order.”
However, the partial summary judgment does not dismiss all other claims or
otherwise dispose of every pending claim and party or clearly and unequivocally
state that it finally disposes of all claims and parties. See id. at 205. Instead, the
order simply denies summary judgment for all claims before it and not expressly
granted in the order.
                                            4
Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Ass’n of Bus., 852 S.W.2d at 446.

Whether the trial court has subject matter jurisdiction is a question of law that we

review under a de novo standard, construing the pleadings liberally in plaintiff’s

favor and accept the pleadings’ factual allegations as true. Miranda, 133 S.W.3d at

226; Tex. Nat. Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex.

2002). The reviewing court does not examine the merits of the cause of action

when considering a trial court’s ruling on a plea to the jurisdiction, but considers

only the plaintiff’s pleadings and any evidence relevant to the jurisdictional

inquiry. Cty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).

       In order to overcome the school district’s entitlement to governmental

immunity, the Cheerleaders are required to allege facts that affirmatively

demonstrate the trial court’s jurisdiction. See Tex. Ass’n of Bus., 852 S.W.2d at

446.

                                     Analysis

       “It can hardly be argued that either students or teachers shed their

constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). This often

quoted sentence from one of the most important Supreme Court cases in history

protecting the constitutional rights of students conveys that schools are not

                                         5
institutions   immune      from   constitutional   scrutiny:   students   retain   their

constitutional freedoms even when they cross the threshold into the school. At the

same time, the Court has also held that “the constitutional rights of students in

public school are not automatically coextensive with the rights of adults in other

settings[,]” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986). The

rights of students “must be ‘applied in light of the special characteristics of the

school environment.’” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266

(1988) (quoting Tinker, 393 U.S. at 506).

      The central disagreement between the Cheerleaders and Kountze ISD has

revolved around the question of whether the Cheerleaders’ run-through banners

are, for purposes of free speech law, “government speech” as maintained by the

school district, or “private speech” as claimed by the Cheerleaders. Kountze ISD

contends there is no waiver of governmental immunity as to the Cheerleaders’ free

speech claims because they have not established that the banners are private

speech, and thus, the trial court erred by denying the plea to the jurisdiction. We

will address the issue concerning whether the speech is government speech or

private speech, as the resolution of that issue controls the question of governmental

immunity in this matter.



                                           6
      Government speech is “not subject to scrutiny under the Free Speech

Clause.” Pleasant Grove City v. Summum, 555 U.S. 460, 464 (2009). That is, the

government may restrict its own speech, which includes speech expressed by

others under government control, without implicating the Free Speech Clause. Id.

at 467–68. The “government speech doctrine” is justified at its core by the idea

that, in order to function, government must have the ability to express certain

points of view, including control over that expression. See, e.g., Nat’l Endowment

for the Arts v. Finley, 524 U.S. 569, 598 (1998) (Scalia, J., concurring in the

judgment) (“It is the very business of government to favor and disfavor points of

view . . . .”). The doctrine gives the government an absolute defense to an

individual’s free-speech claim. Thus, if the Cheerleaders’ speech as painted on the

run-through banners is pure government speech, the Cheerleaders could not prove

a valid waiver of immunity from suit in order to invoke the court’s subject matter

jurisdiction over their claim. See Miranda, 133 S.W.3d at 226. Private speech, on

the other hand, is generally subject to constitutional protections of free speech,

save and except for certain enumerated types of forbidden speech not applicable

here, and governmental immunity has been waived for such claims.




                                        7
                                 Applicable Law

      The Cheerleaders clearly alleged in their petition that, among other things,

the “Defendants deprived and continue to deprive [them] of their rights to free

speech[.]” They also sought “a declaration from the Court . . . that the conduct and

actions of Defendants as described violate state law, to include the Texas

Constitution[.]” 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.” Tex. Const. art. I, § 8. The U.S. Supreme Court has held

that “First Amendment rights, applied in light of the special characteristics of the

school environment, are available to teachers and students.” Tinker, 393 U.S. at

506. The Cheerleaders offer no arguments based on the text, history, or purpose of

section 8 that it provides them any greater protection in this context than that

provided by the First Amendment of the U.S. Constitution. As such, we may rely

upon persuasive authorities applying free speech protections under both the federal

and Texas constitutions. See In re Commitment of Fisher, 164 S.W.3d 637, 645

(Tex. 2005) (“Where, as here, the parties have not argued that differences in state

and federal constitutional guarantees are material to the case, and none is apparent,

we limit our analysis to the United States Constitution and assume that its concerns

                                         8
are congruent with those of the Texas Constitution.”); Tex. Dep’t of Transp. v.

Barber, 111 S.W.3d 86, 106 (Tex. 2003); Davenport v. Garcia, 834 S.W.2d 4, 40

(Tex. 1992) (Hecht, J., concurring) (“When state and federal provisions overlap or

correspond, state law, as well as federal law and the law of other states, may be

helpful in analyzing their proper application.”).

                    Characterization of Cheerleaders’ Speech

      The Fifth Circuit has explained that

      [w]hen educators encounter student religious speech in schools, they
      must balance broad constitutional imperatives from three areas of
      First Amendment jurisprudence: the Supreme Court’s school-speech
      precedents, the general prohibition on viewpoint discrimination, and
      the murky waters of the Establishment Clause. They must maintain
      the delicate constitutional balance between students’ free-speech
      rights and the Establishment Clause imperative to avoid endorsing
      religion.

Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011). This body of law has been

described by other courts as “complicated.” See, e.g., id. at 382. We thus evaluate

student speech claims “‘in light of the special characteristics of the school

environment,’” beginning by categorizing the student speech at issue. Morse v.

Frederick, 551 U.S. 393, 394 (2007) (quoting Tinker, 393 U.S. at 506). For




                                          9
resolution of this interlocutory appeal, we need only look to the Supreme Court’s

general school-speech precedents.3

      In school speech cases, there are “three recognized categories of speech:

government speech, private speech, and school-sponsored speech.” Pounds v. Katy

Indep. Sch. Dist., 730 F.Supp.2d 636, 642 (S.D. Tex. 2010). Kountze ISD argues

that the banners are “government speech,” that is, speech of individuals acting in

their official capacity as representatives of the school, and thus, constitutional free

speech protections are not implicated and none of the cheerleaders individually,

nor the group as a whole, has a constitutional right to control the content of the

banners.

A. Government Speech

      In determining whether speech is the government’s, the “key inquiry is the

‘degree of governmental control over the message.’ Speech constitutes government

speech when it is ‘effectively controlled’ by the government.” Pelts & Skins, LLC

v. Landreneau, 448 F.3d 743, 743 (5th Cir. 2006) (quoting Johanns v. Livestock

Mktg., Assoc., 544 U.S. 550, 560–61 (2005)). The quintessential example of pure


      3
        Neither party has raised any issue concerning the Establishment Clause,
and viewpoint discrimination precedents are not dispositive of this appeal and
become relevant only if we determine that the trial court may exercise subject
matter jurisdiction of these claims. Therefore, we limit our discussion to
categorizing the student speech at issue.
                                          10
government speech in the school setting is a principal speaking at a school

assembly. Fleming v. Jefferson Cty. Sch. Dist., 298 F.3d 918, 923 (10th Cir. 2002).

      Kountze ISD relies primarily upon the Supreme Court cases of Pleasant

Grove City v. Summum, 555 U.S. 460 (2009) and Garcetti v. Ceballos, 547 U.S.

410 (2006) to support its contention that the run-through banners displayed at

varsity football games are government speech.4 In Summum, the Supreme Court

held that Pleasant Grove City, Utah (“the City”) had not violated the First

Amendment free speech rights of Summum, a religious organization, when the

City refused to erect a permanent monument that Summum had tried to donate and

place in a public park. Summum, 555 U.S. at 481. The Court held there was no

First Amendment violation because “the City’s decision to accept certain privately

donated monuments while rejecting [Summum’s] is best viewed as a form of

government speech.” Id. The Supreme Court noted that the City “‘effectively

controlled’ the messages sent by the monuments in the Park by exercising ‘final
      4
         Kountze ISD cites Doe v. Silsbee Indep. Sch. Dist., 402 Fed. Appx. 852,
855 (5th Cir. 2010), cert, denied, 131 S. Ct. 2875 (2011) for its assertion that the
cheerleaders are representing and acting on behalf of the school when they engage
in their cheerleading activities, arguing that “[a]s the Fifth Circuit held in a case
out of nearby Silsbee ISD, cheerleaders do not have free speech rights over when
or how they participate in cheerleading activities because they serve ‘as a
mouthpiece’ for the school.” The Federal Appendix covers opinions and decisions
from 2001 to date issued by the U.S. courts of appeals that are not selected for
publication in the Federal Reporter. These unpublished opinions are not binding
precedent, although they may be cited as authority. See Fed. R. App. Pro. 32.1.
                                         11
approval authority’ over their selection.” Id. at 473 (quoting Johanns, 544 U.S. at

560–61). The Court explained that governments have historically used monuments,

such as statutes, triumphal arches, and columns, “to speak to the public.” Id. at

470. These “[p]ermanent monuments displayed on public property typically

represent government speech.” Id. The Court also recognized that public parks are

a traditional public forum. Id. at 469. “Public parks are often closely identified in

the public mind with the government unit that owns the land.” Id. at 472. Thus,

given the context, there was “little chance that observers [would] fail to appreciate”

that the government was the speaker. Id. at 471.

      Like Summum, Johanns v. Livestock Marketing Ass’n, is another often cited

decision wherein the Supreme Court has most clearly formulated the government

speech doctrine. In Johanns, the Supreme Court held that a promotional campaign

to encourage beef consumption that the government “effectively controlled” was

government speech. 544 U.S. at 560. The government did not pay for the campaign

itself; instead, it funded the campaign by charging an assessment on all sales of

cattle and imported beef products. Id. at 554. The government, though, had “set out

the overarching message and some of its elements” and had “final approval

authority over every word used in every promotional campaign.” Id. at 561. Thus,

because the message in the promotional campaign was “from beginning to end the

                                         12
message established by the Federal Government,” the campaign was categorized as

government speech. Id. at 560.

      Garcetti v. Ceballos instructs that, “when public employees make statements

pursuant to their official duties, the employees are not speaking as citizens for First

Amendment purposes, and the Constitution does not insulate their communications

from employer discipline.” 547 U.S. at 421. The critical question identified in

Garcetti was whether the speech at issue was itself ordinarily within the scope of

the employee’s duties, not whether it merely concerned those duties. Id. at 423–24.

If so, the public employee’s speech is not entitled to constitutional protection. Id.

      Garcetti was used recently to affirm a school district’s decision not to renew

the contract of a beloved high school football coach who, following the end of each

football game, would silently take a knee at mid-field and say a short, silent prayer.

Kennedy v. Bremerton Sch. Dist., No. 16-35801, 2017 U.S. App. LEXIS 16106

(9th Cir., Aug. 23, 2017). Despite the fact that the game was over, that he was not

exercising authority over any student-athlete, and that he had no specific, assigned

task at the time of his prayer, the Ninth Circuit held that the coach’s speech was

part of his “job responsibilities.” Id. at *29–34. Thus, his speech was not entitled to

constitutional protection. Id. at *42–43. The Court held that the coach spoke as a

public employee, not as a private citizen when he kneeled and prayed on the fifty-

                                          13
yard line immediately after games in school-logoed attire while in view of students

and parents—that he had a professional responsibility to communicate

demonstratively to students and spectators and “he ‘took advantage of his position

to press his particular views upon the impressionable and captive minds before

him.’” Id. at *36–37, 40–41 (quoting Johnson v. Poway Unified Sch. Dist., 658

F.3d 954, 968 (9th Cir. 2011)). The panel held that because plaintiff’s

demonstrative speech fell within the scope of his typical job responsibilities, he

spoke as a public employee, and the district was permitted to order him not to

speak in the manner that he did. Id. at *37.

      In the most recent case dealing with the issue of government speech, the

Supreme Court held that the messages on Texas specialty license plates are

government speech and, using the same analysis as in Summum, cited three key

factors from that opinion. See Walker v. Texas Div., Sons of Confederate Veterans,

Inc., 135 S.Ct. 2239 (2015). First, license plates have long been used by the States

to convey state messages. Id. at 2248. Second, license plates “are often closely

identified in the public mind” with the State, since they are manufactured and

owned by the State, generally designed by the State, and serve as a form of

“government ID.” Id. (internal quotation marks omitted). Third, Texas



                                         14
“maintain[ed] direct control over the messages conveyed on its specialty plates.”

Id. at 2249. The Court explained that

      a person who displays a message on a Texas license plate likely
      intends to convey to the public that the State has endorsed that
      message. If not, the individual could simply display the message in
      question in larger letters on a bumper sticker right next to the plate.
      But the individual prefers a license plate design to the purely private
      speech expressed through bumper stickers. That may well be because
      Texas’s license plate designs convey government agreement with the
      message displayed.

Id. at 2249. Because Texas’s specialty license plate designs constitute government

speech, Texas was consequently entitled to refuse to issue plates featuring a private

party’s proposed design. Id. at 2253.

      We note that neither Summum nor Garcetti, relied upon by Kountze ISD, nor

Johanns or Walker, actually involved school speech—a crucial distinction, because

“student speech claims” are different from other types of speech claims and must

be evaluated “in light of the special characteristics of the school environment.”

Morgan, 659 F.3d at 375 (quoting Morse, 551 U.S. at 39). In Garcetti, the speaker

was a government employee, not a private citizen or a student. 547 U.S. at 421–22.

In both Summum and Walker, the speaker was the government itself, conveying a

government message via a monument in a government park and specialty license

plates, respectively. Summum, 555 U.S. at 472; Walker 135 S.Ct. at 2253. Here, by

contrast, the Cheerleaders are not school employees, nor are they conveying the
                                       15
government’s own message. And, while Kennedy is an example of government

speech within the public school setting, the Cheerleaders cannot be said to be

public employees and thus, Kennedy is distinguishable. See Kennedy, 2017 U.S.

App. LEXIS 16106, at *37.

      Kountze ISD asserts that the run-through banners are prepared by the

Kountze High School Cheerleaders, an official school organization, at their school-

sponsored, school-supervised practices on school property. The Cheerleaders are

generally required to prepare and display the banners as part of their duties. The

banners are displayed on government property (the football stadium), in an area

that is not generally accessible to the public (the football field), and at a time when

a limited number of individuals are allowed on the field (players, cheerleaders,

coaches, staff and band members). The cheerleader sponsors (paid school district

employees) have the right to control the content and review and approve each of

the banners before it is displayed. Kountze ISD asserts that, based on all of these

factors, the Cheerleaders’ speech as contained on the banners is best categorized as

government speech.

      On the other hand, the Cheerleaders contend that a single, dispositive fact

controls the categorization of speech of the run-through banners: the school district

allows the Cheerleaders to select the message that is placed on the banners.

                                          16
Regardless of the amount of supervision of the Cheerleaders’ activities, or the

extent of Kountze ISD’s post-selection review of the messages on the banners,

because the students select the message each week and not the school, the

statements on the run-through banners must be categorized as pure private speech

of the Cheerleaders.

      To determine whether speech or expressive conduct constitutes government

speech, the Supreme Court identified three relevant factors: (1) whether the

government has historically used the medium of speech as conveying a message on

the government’s behalf; (2) whether a reasonable observer would interpret the

speech as conveying a message on the government’s behalf; and (3) whether the

government retained control and final authority over the content of the message.

See Walker, 135 S.Ct. at 2248–50; Summum, 555 U.S. at 470–73.

      Applying this three-factor test in our case, we first review the facts from the

record before us to determine whether Kountze ISD has historically used run-

through banners during the pregame ceremony as a means to convey a message on

behalf of the school district. Kountze ISD portrayed that the purpose of the run-

through banners was “to get the crowd and the football players excited.” The

football players run through the banner shortly after it is held up by the

cheerleaders; it is displayed for up to a couple of minutes before it is destroyed by

                                         17
the football players running through it. The purpose of the run-through banners is

generally to encourage athletic excellence, good sportsmanship, and school spirit.

Kevin Weldon, former Superintendent for Kountze ISD, acknowledged in his

testimony that cheerleading is an extracurricular or non-curriculum activity for

which students receive no grade or credit for participation. The sponsors for the

cheerleaders, who are paid employees for Kountze ISD, testified that they do not

have a prepared script for the banners from the school district, nor do they suggest

or edit the language chosen by the cheerleaders for the banners. The sponsors

provided sworn testimony that the only supervisory control they exercise over the

messages on the run-through banners is to ensure that the messages do not violate

school policy.5 The sponsors, though, approved each one of the banners before it

was displayed during the pregame ceremony.

      While the tradition of run-through banners began decades ago, the sponsors

affirmed that the banners are not required and are not always created for every

game. In previous years, messages on the banners typically included negative


      5
         This policy, contained in FNA (LOCAL) and FMA (LEGAL), provides
that any 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.
                                           18
language about opposing teams, such as “Scalp the Indians” and “Beat the

Bulldogs.” Other examples included by the Cheerleaders included “Thrash the

Tigers,” “Destroy the Dogs,” and “Bury the Bobcats.” The Cheerleaders decided

that “positive expressions would serve as a model of good sportsmanship and

would be preferable over the typical derogatory language customarily seen on

other run-through banners.” The run-through banners are hand-painted in the

Cheerleaders’ handwriting, and they do not have the school or district’s name

anywhere on them. No school funds are used to make any of the banners; instead,

they are funded by private funds. The banners are made after regular school hours.

      Based on the record before us, we find that historically, Kountze ISD has not

used run-through banners as a means to convey a message on behalf of the school

district. This factor weighs against finding the use of a run-through banner to be

pure government speech.

      Second, we ask whether a reasonable observer would interpret the speech as

conveying a message on the school district’s behalf. The Cheerleaders are

members of an organized student-activity of Kountze High School. They are

required to wear an approved uniform bearing the school colors and containing the

name or initials of the school at all times that they are performing their role as

cheerleaders. However, the Cheerleaders purchase their own uniforms with private

                                        19
funds. Only the football team and staff, the band, cheerleaders, and other

authorized personnel are allowed on the stadium field. The Cheerleaders are

allowed to display the run-through banners on the field before the game begins.

The banners are unfurled on the field just before the team is announced.

Immediately thereafter, the football players charge through the paper sign and it is

destroyed, never to be displayed again.

      While there is some potential that a reasonable person may interpret the

speech as conveying a message on the school district’s behalf, the Supreme Court

has specifically observed that high school students “are capable of distinguishing

between State-initiated, school sponsored, or teacher-led religious speech on the

one hand and student-initiated, student-led religious speech on the other.” See Bd.

of Educ. of Westside Comm. Sch. v. Mergens, 496 U.S. 226, 250–51 (1990). The

run-through banners are hand-painted by the Cheerleaders. Traditionally, they have

used such slogans as “Destroy the Dogs” or “Scalp the Indians,” words and display

not readily attributable to a government entity such as the school district. The

banners are hardly the type of official publication or communication that would

allow a reasonable person to interpret the speech as conveying a message on the

school district’s behalf. Our analysis of this factor weighs against finding the use

of run-through banners before a football game to be pure government speech.

                                          20
      Finally, we review the facts of this case to determine if Kountze ISD

retained control and final authority over the content of the message. The Court

interprets this factor as analyzing the extent of control exercised over the content of

each run-through banner. Kountze ISD acknowledged through a resolution adopted

by its Board of Trustees that, although the Superintendent and the school board

retain ultimate authority to approve or disapprove of a banner, Kountze ISD has

traditionally entrusted the preparation of such banners to the cheerleader squads

under the authority of their sponsors. However, the resolution in question was not

adopted by the school board until after the decree was issued by the Superintendent

and this lawsuit was filed and a temporary restraining order issued. Therefore, for

purposes of our analysis, we consider only the control and authority exercised by

the school district prior to the issuance of the decree forbidding the religious

language on the run-through banners. The evidence before the trial court shows

that the banners are student-initiated and student-led, and Superintendent Weldon

acknowledged that there was no approved script in creating the banners, nor were

the Cheerleaders delivering a message that had been approved in advance by

anyone with the school district. The sponsors and the Cheerleaders are expected to

exercise good sense in the preparation of the banners. The sponsors review and

approve the content of the banners after they are finished. The sponsors would not

                                          21
permit “inappropriate banners,” which could include, for example, banners that

demonstrated poor sportsmanship or included racial slurs, as set forth above.

      While the school district has shown that it exercises some editorial control

over the preparation of the run-through banners, the facts fail to establish the level

of control necessary to equate the Cheerleaders’ speech with “government speech.”

First, the policy of “approving” banners to ensure they did not include obscene or

objectively offensive material does not transform the Cheerleaders’ speech into

government speech. Compare Johanns, 544 U.S. at 561–62 (wherein degree of

supervision resulted in government control of message conveyed) with Pounds,

730 F.Supp.2d at 645 (wherein school’s exercise of final approval of parent-

selected messages did not set the overall message communicated). The Supreme

Court has held that regardless of how you might characterize the speech, schools

always have the right to prevent students from delivering speech that is vulgar,

lewd, profane or offensive to the school environment, even if the message would

not be considered inappropriate outside of an educational environment. Fraser,

478 U.S. at 683 (“Surely it is a highly appropriate function of public school

education to prohibit the use of vulgar and offensive terms in public discourse.”),

685 (“The First Amendment does not prevent the school officials from determining

that to permit . . . vulgar and lewd speech…would undermine the school’s basic

                                         22
educational mission.”). And the school district need not permit banners that

advocate illegal activity, such as drug use. Morse, 551 U.S. at 397.

      The editorial control exercised by the school district in this case cannot be

said to rise to the level of control that the government exercised over the

monuments it placed in its public parks in Summum, nor is it comparable to the

absolute editorial control the State of Texas exercises over its personalized license

plates. To the contrary, we find the run-through banners more akin to the bumper

stickers referenced in Walker than the personalized license plate. The testimony of

former Superintendent Weldon provides strong indication that Kountze ISD does

not retain control and final authority over the content of each message painted on

the run-through banners: “I commend them for what they’re doing and their

boldness of what they’ve done.” This statement does not support the school

district’s argument that the banners are its own speech, but that it is, instead, the

speech of the student cheerleaders. Therefore, this factor also weighs against

finding the use of run-through banners to be pure government speech.

      Kountze ISD argues further that the case of Santa Fe Indep. Sch. Dist. v.

Doe, 530 U.S. 290 (2000), supports its claim that the run-through banners are

government speech. In that case, the Supreme Court held that pregame student-led

prayers were government speech because the prayers occurred “on government

                                         23
property at government sponsored school-related events” and that the school

district had not opened up its pregame ceremony to “indiscriminate use” by the

general public. Id. at 302–303.6 However, a careful reading of the holding shows

Santa Fe explicitly reaffirms the basic principle that “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.” Id. at 302 (quoting Mergens, 496 U.S. at 250).

      In Santa Fe, the Supreme Court reaffirmed that the Establishment Clause of

the First Amendment prohibits a school district from taking affirmative steps to

create a vehicle for prayer to be delivered at a school function. See id. at 310–11.

The Court applied that principle to hold that Santa Fe’s policy of allowing students

to vote on whether to have prayer before football games constitutes such an

affirmative step. Id.

      Several facts were critical to its holding. First, the school board had adopted

the following policy: “The board has chosen to permit a student to deliver a brief

invocation and/or message to be delivered during the pre-game ceremonies of

home varsity football games to solemnize the event[.]” Id. at 298 n.6. Second, the


      6
        The Supreme Court’s opinion contains significant additional factual details
and discussion concerning why the prayers at issue in that case were not “private
speech.” See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. at 303–08.
                                        24
school board instituted its policy by establishing a two-step election process. Id. at

297. First, students voted on whether to have an invocation or message prior to

football games. Id. at 297–98. If so, a second election was held to choose a student

to do so. Id. Only that student was allowed to speak at the game, and the same

student delivered the message at each game. Id. at 303.

      In view of these facts, the Court rejected Santa Fe’s argument that it was

merely providing a neutral accommodation of private religious speech. Id. at 304.

The Court found significant that the school policy “approv[ed] of only one specific

kind of message, an ‘invocation.’” Id. at 309. Under such circumstances, the Court

concluded that “the District has failed to divorce itself from the invocations’

religious content,” and has crossed the line from state neutrality toward religion to

state sponsorship of religion. Id. at 291.

      In Santa Fe, the school district attempted to disentangle itself from the

religious messages by instituting a student election process, believing it could

satisfy the constitutional requirement for neutrality toward religious speech by

allowing such speech to be chosen by the majority. See id. at 297–98. In the

Court’s view, however, “Santa Fe’s student election system ensure[d] that only

those messages deemed ‘appropriate’ under the District’s policy [could be

delivered. That is, the majoritarian process implemented by the District

                                             25
guarantee[d], by definition, that minority candidates [would] never prevail and that

their views [would] be effectively silenced.” Id. at 304. Such a policy, the Court

concluded, substitutes the views of the majority for the government neutrality

required by the Establishment Clause. Id.

      In contrast, Kountze ISD makes no claim in this case that the Cheerleaders

were required or encouraged in any way to include religious messages on the

banners. Likewise, there is no school policy or rule that, in actuality or effect, even

suggested, much less required, the placement of religious messages on the banners.

Indeed, until the school year in question, the messages painted on the banners had

been entirely non-religious in nature. The extent of the school’s policy concerning

banners was that the cheerleaders should make banners to promote school spirit at

football games. The text and content of the message, aside from the prohibition on

obscene material, is, was, and always had been, left up to the discretion of the

cheerleaders. Thus, we find the reasoning in Santa Fe to be inapposite.

      Instead, we find the reasoning in Chandler v. James, 180 F.3d 1254 (11th

Cir. 1999) (Chandler I) and Chandler v. Siegelman, 230 F.3d 1313 (11th Cir.

2000) (Chandler II), instructive, particularly insofar as the prayer involved in those

cases was distinguished from the prayer that was actively or surreptitiously

encouraged by the school in Santa Fe. In Chandler I, the Eleventh Circuit held that

                                          26
as long as prayer at a student event was “genuinely student-initiated,” it was

protected private speech:

      Permitting students to speak religiously signifies neither state
      approval nor disapproval of that speech. The speech is not the State’s-
      -either by attribution or by adoption. The permission signifies no more
      than that the State acknowledges its constitutional duty to tolerate
      religious expression. Only in this way is true neutrality achieved.

Chandler I, 180 F.3d at 1261. In Chandler II, the Eleventh Circuit revisited its

holding in Chandler I and reiterated that a school policy does not improperly

endorse religion simply because it does properly tolerate it. 7 Chandler II, 230 F.3d

at 1317. The court reasoned that “[t]he Establishment Clause does not require the

elimination of private speech endorsing religion in public places. The Free

Exercise Clause does not permit the State to confine religious speech to whispers

or banish it to broom closets. If it did, the exercise of one’s religion would not be

free at all.” Id. at 1316. “Private speech endorsing religion is constitutionally

protected—even in school. Such speech is not the school’s speech even though it

may occur in the school.” Id. at 1317.
      7
         The record before us indicates that the policy of Kountze ISD properly
tolerated religious student speech before it received a letter from the Freedom from
Religion Foundation. A school district’s toleration of student religious speech that
happens to re-occur does not evolve into improper endorsement of religion by the
school district. It is the hastily-crafted and hastily-adopted school board
resolution(s) that stemmed from the letter and subsequent lawsuit that historically
runs afoul of the Establishment Clause and entangles school districts in
endorsement of religion violations.
                                         27
      In light of the record before us, applying the three-factor test set forth by the

U.S. Supreme Court in Summum and Walker, we find the Cheerleaders’ speech on

the pregame run-through banners cannot be characterized as government speech.

B. School-Sponsored Speech

      School-sponsored speech is a category of speech devised for the distinctive

context of the public school. It is neither pure government speech nor pure private

speech, but rather student expression that “may fairly be characterized as part of

the school curriculum,” which means that it is “supervised by faculty members and

designed to impart particular knowledge or skills to student participants and

audiences.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988). Such

speech may be regulated by the school so long as “editorial control over the style

and content of student speech in school-sponsored expressive activities . . . [is]

reasonably related to legitimate pedagogical concerns.” Id. at 273. School-

sponsored speech includes “school-sponsored publications, theatrical productions,

and other expressive activities that students, parents, and members of the public

might reasonably perceive to bear the imprimatur of the school.” Id. at 271. These

speech activities are school-sponsored because they “may fairly be characterized as

part of the school curriculum, whether or not they occur in a traditional classroom

setting, so long as they are supervised by faculty members and designed to impart

                                         28
particular knowledge or skills to student participants and audiences.” Id. One

justification for giving schools this additional authority is to ensure that “the views

of the individual speaker are not erroneously attributed to the school.” Id. This is

important, among other reasons, so that the school may refuse to sponsor student

speech that would “impinge upon the rights of other students” or “associate the

school with any position other than neutrality on matters of political controversy.”

Id. at 271–72. According to the Supreme Court, this level of authority was

“consistent with [their] oft-expressed view that the education of the Nation’s youth

is primarily the responsibility of parents, teachers, and state and local school

officials, and not of [] judges.” Id. at 273. “Federal courts should only intervene in

decisions to restrict school-sponsored speech when the decision has ‘no valid

educational purpose.’” Pounds, 730 F.Supp.2d at 648–49 (quoting Hazelwood, 484

U.S. at 273). Because the speech at issue is not pure government speech, and

because the doctrines overlap to such a great extent, see Morse, 551 U.S. at 429–30

(Breyer, J., concurring in the judgment in part and dissenting in part), a Hazelwood

analysis is appropriate for the sake of completeness. Kountze ISD argues that if the

speech is not pure government speech, it may be analyzed under Hazelwood.

      The speech at issue in Hazelwood was a high school newspaper published

every three weeks by students in the school’s Journalism II class. 484 U.S. at 262.

                                          29
It was funded by the school board and supplemented by advertising sales. Id. The

newspaper’s faculty adviser submitted page proofs to the school principal before

each publication. Id. at 263. Following one such submission, the principal withheld

from publication two student-written stories, one describing the experiences of

three pregnant students and another discussing the impact of divorce on students.

Id. That led three students to file the underlying suit, alleging that the censorship

violated their First Amendment Rights. Id. at 264. In reviewing the school’s

actions, the Court drew a distinction between private student speech that “happens

to occur on the school premises” and school-sponsored expression, where

“students, parents, and members of the public might reasonably perceive

[expression] to bear the imprimatur of the school” and the expression occurs in a

curricular activity. Id. at 270–71. Applying this standard, the Supreme Court held

that the student newspaper was school-sponsored speech and that the principal

acted reasonably in redacting the two pages that concerned him. Id. at 274–76.

      The Court articulated that restriction on school-sponsored speech must be

“reasonably related to legitimate pedagogical concerns.” Id. at 273. Courts

applying the Hazelwood standard have found this final element satisfied if the

action is reasonably related to “the school district’s desire to avoid controversy

within a school environment.” Fleming, 298 F.3d at 925–26. “Indeed, the

                                         30
pedagogical concern in Hazelwood itself was to avoid the controversial subjects of

pregnancy and divorce in a school setting because of the potentially disruptive

nature of such subjects upon young students.” Id. at 926; see also, e.g., Curry v.

Hensiner, 513 F.3d 570, 578 (6th Cir. 2008) (upholding school’s decision to

prevent a student from selling candy cane ornaments with religious messages as

part of a school project; finding that the legitimate pedagogical concerns of

preventing other students from being offended and/or subjected to unwanted

religious messages that might conflict with their parents’ religious teachings

motivated the decision); Bannon v. Sch. Dist., 387 F.3d 1208, 1217. (11th Cir.

2004)(finding that the legitimate pedagogical concern of avoiding disruption to the

learning environment caused by controversial student-painted murals with overtly

religious messages permitted the school to remove the murals); Fleming, 298 F.3d

at 934 (holding that a high school’s desire to avoid a religious debate that would be

disruptive to the learning environment was a legitimate pedagogical concern). In

this case, the Kountze ISD has not raised disruption of the learning environment as

a concern. There was no testimony in the record that anyone made a complaint

about the banners, and the cheerleaders testified that they received compliments

and encouragement from the players, students from visiting schools, and the public



                                         31
regarding their choice of wording on the run-through banners containing religious

statements and references.

      We find the reasoning in Fleming persuasive and illustrative of an example

of school-sponsored speech outside of the classroom. Following the tragic shooting

at Columbine High School, the school officials decided to re-open the school but

made concerted efforts to change the appearance of the school building to avoid

triggering any disturbing memories of the attack. Fleming, 298 F.3d at 920.

Teachers at the school came up with an idea of having the students paint 4-inch-

by-4-inch tiles that would be installed throughout the halls of the school. Id. The

purpose of the project was two-fold: students would have an opportunity to come

into the school and become more comfortable with it and, by participating in

creating the tile art, they would also be a part of the reconstruction of their school.

Id. at 920–21. To ensure that the interior of the building would remain a positive

learning environment and not become a memorial to the tragedy, school

administrators published various rules and guidelines for the tiles that prohibited

certain language, names of the shooting victims or date of the attack, religious

symbols, and anything obscene or offensive. Id. at 921. Tiles that did not conform

to the guidelines were not to be installed. Id. The tiles and supplies to be used in

the tile art project were paid for by private donations. Id.

                                          32
      A few of the painted tiles turned in contained messages such as “Jesus Christ

is Lord,” and “4/20/99 Jesus Wept,” “There is no peace says the Lord for the

wicked,” names of victims killed in the shooting, and crosses. Id. at 921. The

teachers supervising the painting “informed them that tiles that were inconsistent

with the guidelines would be fired separately and would not be affixed to the walls,

but would be given to them for their personal use.” Id.

      The tiles were screened for compliance with the guidelines by various

volunteers, but due to the volume of tiles, a few that were inconsistent with the

guidelines were affixed to the walls. Id. A school official inspected the building

and noticed some inappropriate tiles that were posted and had them removed. The

removed tiles included ones with crosses, gang graffiti, an anarchy symbol, a

“Jewish star,” the blue Columbine ribbon, a skull dripping with blood, a teacher’s

name on a tile the teacher painted, the date of the attack, and a mural containing

red colors that some people found disturbing. Id. at 921–22.

      Plaintiffs brought suit alleging, among other things, a violation of their free

speech rights. To discern whether the expressive activity was government speech,

the Tenth Circuit Court applied a four factor analysis:

      (1) whether the “central purpose” of the project is to promote the
      views of the government or of the private speaker; (2) whether the
      government exercised “editorial control” over the content of the
      speech; (3) whether the government was the “literal speaker”; and (4)
                                      33
      whether “ultimate responsibility” for the project rested with the
      government.

Id. at 923. Having determined through its analysis that the expressive activity was

not properly characterized as government speech, the court performed a

Hazelwood analysis to determine if it was school-sponsored speech. Id. The court

held that

      [s]chool-sponsored speech is student speech that a school
      “affirmatively…promote[s], as opposed to speech that it “tolerates.”
      Expressive activities that students, parents, and members of the public
      might reasonably perceive to bear the imprimatur of the school
      constitute school-sponsored speech, over which the school may
      exercise editorial control, so long as [its] actions are reasonably
      related to legitimate pedagogical concerns.

Id. at 923–24 (quoting Hazelwood, 484 U.S. at 270–71) (internal citations

omitted). The court concluded that the tile art project at Columbine High School

constituted school-sponsored speech and was governed by the holding in

Hazelwood. Id at 924.

      While the court recognized that there may be expressive activities that occur

on the school property that do not bear the imprimatur of the school, activities such

as the tile art project that the school allowed to be integrated permanently into the

school environment and that students pass by during the school day bore the

imprimatur of the school. Id. at 925. “Further, the level of involvement of school

officials in organizing and supervising such an event [also] affects whether that
                                        34
activity bears the school’s imprimatur.” Id. The court held that when a tile, created

pursuant to a project that the school supervised, and for which it approved funding,

is displayed permanently on school grounds, and when that project aims to advance

pedagogical concerns, the tile will normally be considered school-sponsored

speech. Id. at 930. In that case, the court felt a reasonable observer would likely

perceive that the school had a role in setting guidelines for, and ultimately

approving, the tiles it allowed to become a part of the school itself. Id. “Although

the painting activity took place outside of school hours and was not mandatory, the

effects of the painting were visible on the school walls throughout the building,

during the school day when children are compelled to attend.” Id. (emphasis in

original). Because the school permanently integrated the tiles into the school

environment, and was significantly involved in the creation, funding, supervision,

and screening process of the tile project, the court concluded that the tiles bore the

imprimatur of the school and thus, the expressive activity was best categorized as

school-sponsored speech. Id. at 931.

      Further, the court found that the school’s restriction on religious symbols or

language on the tiles was reasonably related to a pedagogical interest. The school

asserted two pedagogical reasons for its restrictions on religious references: “(1)

religious references may have served as a reminder of the shooting, and (2) to

                                         35
prevent the walls from becoming a situs for religious debate, which would be

disruptive to the learning environment.” Id. at 933.

      The critical inquiry in deciding whether speech is “school-
      sponsored”" under Hazelwood is whether it could reasonably be
      understood to bear the school’s imprimatur, which is synonymous
      with “sanction” or “approval.” Relevant considerations include (1)
      where and when the speech occurred; (2) to whom the speech was
      directed and whether recipients were a “captive audience”; (3)
      whether the speech occurred during an event or activity organized by
      the school, conducted pursuant to official guidelines, or supervised by
      school officials; and (4) whether the activities where the speech
      occurred were designed to impart some knowledge or skills to the
      students.

Morgan, 659 F.3d at 376. When we apply the factors under Hazelwood to the facts

of this case, there is no clear distinction between characterizing the expressive

activity involved in this case as school-sponsored speech and pure private speech.

The Cheerleaders certainly prepared the run-through banners for display and

delivery of their speech during a high school football game sponsored by the

school district, performed on the school district’s playing field, while they were

fulfilling their duties as official cheerleaders for the school. The recipients are not

simply going about their own business but have paid to attend the school sponsored

event and thus, are more of a captive audience than not. However, we distinguish

the momentary display of run-through banners containing religious-themed

statements from the school-sponsored prayer that the Supreme Court found would

                                          36
“exact religious conformity from a student as the price of joining her classmates at

a varsity football game.” Santa Fe, 530 U.S. at 312 (quoting Lee v. Weisman, 505

U.S. 577, 596 (1992)). The activity of displaying the run-through banner is

conducted under the supervision of school officials. A factor that weighs against

characterizing the speech as school-sponsored speech is that football and

cheerleading are non-curriculum or extracurricular activities and, while the student

athletes may certainly gain valuable life lessons from engaging in the team sports,

the activities are not designed specifically to impart some specific knowledge or

skills to the students in a pedagogical sense. The court in Fleming read the

language “designed to impart particular knowledge or skills to student participants

and audiences” in Hazelwood to mean “activities that affect learning, or in other

words, affect pedagogical concerns.” Fleming, 298 F.3d at 925. That standard was

satisfied because the tile project was intended to “reacquaint[] the students with the

school and participat[e] in community healing” after the tragic shootings at the

school. Id. at 931. Here, the purpose is simply to energize the crowd and teams, in

keeping with the traditional role of cheerleaders. The former Superintendent and

the sponsors all agreed that cheerleading is a non-curriculum activity and is not

designed to impart particular knowledge or skills as contemplated by the Supreme

Court in Hazelwood. While Texas Friday Night football is a tradition all of its own

                                         37
and is a great source of local community pride, football does not appear to us on

this record to involve the formal pedagogical instruction contemplated by the

Supreme Court in Hazelwood. Further, given the nature of the expressive

activity—a hand-drawn, playful paper banner, displayed by cheerleaders engaged

in an extra-curricular activity, only momentarily before the football team runs

through the banner—it is highly unlikely that the banner would appear to those in

attendance at the game to contain a message endorsed by the school.

      Courts have found this final element satisfied if the action is reasonably

related to “the school district’s desire to avoid controversy within a school

environment.” Id. at 925–26. “Indeed, the pedagogical concern in Hazelwood itself

was to avoid the controversial subjects of pregnancy and divorce in a school setting

because of the potentially disruptive nature of such subjects upon young students.”

Id. at 926. In this case, the Kountze ISD has not raised disruption of the learning

environment as a concern. Kountze ISD has not offered any evidence of the

pedagogical concern implicated nor has it asserted any such concerns as the basis

of the prohibition of the biblical references on the run-through banners.

      Thus, we find the speech at issue is not properly characterized as school-

sponsored speech.



                                         38
C.    Private Speech

      The first step in analyzing the appropriate constitutional standard to apply to

private speech is to identify the nature of the forum in question, whether a

traditional public forum, a limited public forum, or a non-public forum. See Perry

Educ. Ass'n. v. Perry Local Educators' Ass'n., 460 U.S. 37, 44–45 (1983).

However, a detailed discussion of the forum issue is not necessary in the context of

the instant case. Unless school officials have opened school facilities for

indiscriminate use by the public, a school is a non-public forum, pursuant to which

“school officials may impose reasonable restrictions on the speech of students,

teachers, and other members of the school community.” Hazelwood, 484 U.S. at

267. There is nothing in the record to suggest that Kountze ISD opened the pre-

game ceremony at football games for use indiscriminately by the general public.

Therefore, it is deemed to be a non-public forum.

      In Tinker, the Court addressed the protection students have under the First

Amendment to engage in speech or demonstration on school premises. School

officials may only restrict such private, personal expression to the extent it would

“materially and substantially interfere with the requirements of appropriate

discipline in the operation of the school,” or “impinge upon the rights of other

students.” 393 U.S. at 509 (quoting Burnside v. Byars, 363 F.2d 744, 749 (1966)).

                                        39
The rights announced in Tinker, though, do not extend to several broad categories

of student speech: “lewd, indecent, or offensive” speech; school-sponsored speech;

and speech “that a reasonable observer would interpret as advocating illegal drug

use.” Morgan, 659 F.3d at 374.

      The “private speech” at issue in Tinker was the “silent, passive expression of

opinion” of students who wore black armbands to school to protest the Vietnam

War. 393 U.S. at 508. The Supreme Court held that the black armbands worn by

the students in Tinker are representative of the pure student expression that a

school must tolerate unless it can reasonably forecast that the expression will lead

to “substantial disruption of or material interference with school activities[.]” Id. at

514. In this case, Kountze ISD has not raised substantial disruption of or material

interference with school activities as a concern. Kountze ISD has not pleaded or

offered any evidence of disruption or interference as the basis for the prohibition of

the biblical references on the run-through banners. In fact, the only evidence in the

record is that the Cheerleaders received compliments and encouragement from

those in attendance, from the community overall, the players, as well as the players

and participants from opposing schools. Therefore, we conclude that the

Cheerleaders’ speech expressed on the run-through banners is best characterized as

the pure private speech of the students.

                                           40
      In conclusion, taking all of the Cheerleaders’ pleadings as true, we hold the

Cheerleaders pleaded sufficient facts to show both a waiver of immunity and to

affirmatively demonstrate that the trial court possessed jurisdiction over the

dispute. See Miranda, 133 S.W.3d at 226. We overrule the school district’s issue

on appeal and affirm the trial court’s ruling to deny Kountze ISD’s plea to the

jurisdiction.

                                       Standing

      Kountze ISD further complains that the cheerleaders who sued lack standing

to bring suit because the individual cheerleaders who sued do not represent the

entire squad. Because standing implicates the trial court’s subject matter

jurisdiction to hear a case, we address this issue on remand. See Nootsie, Ltd. v.

Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996). As the Texas

Supreme Court has succinctly stated:

      A plaintiff must have both standing and capacity to bring a lawsuit.
      The issue of standing focuses on whether a party has a sufficient
      relationship with the lawsuit so as to have a justiciable interest in its
      outcome, whereas the issue of capacity is conceived of as a procedural
      issue dealing with the personal qualifications of a party to litigate . . . .
      A plaintiff has standing when it is personally aggrieved, regardless of
      whether it is acting with legal authority; a party has capacity when it
      has the legal authority to act, regardless of whether it has a justiciable
      interest in the controversy.



                                           41
Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). (internal

citations omitted). The alleged misconduct complained of here is a violation of

each student’s individual right of free speech. As a general matter, injury is the

“invasion of a legally protected interest[.]” Ne. Fla. Chapter of the Associated Gen.

Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 663 (1993).

      The individual cheerleaders who sued testified that the messages on the run-

through banners were decided by the unanimous consent of the cheerleader squad

and that no individual cheerleader had the authority to decide the content of any

message. The school district argues that, even assuming that the banners are

“private speech,” they would be the “private speech” of the cheerleader squad, not

of the individual cheerleaders, because decisions about the content of the banners

were up to the squad, not individual cheerleaders. Therefore, the school district

argues that the individual cheerleaders who sued do not have standing to sue on

behalf of the squad because the entire squad is not included as plaintiffs, nor even a

majority of the squad.

      Kountze ISD cites Wingate v. Hajdik for the principle that absent statutory

authority, neither common law nor equity give the members of an organization the

right to sue on behalf of the organization. 795 S.W.2d 717, 719 (Tex. 1990). The

school district’s challenge to standing misrepresents the claims of the individual

                                         42
cheerleaders who sued the district. The cheerleaders who sued have initiated this

lawsuit as individuals alleging their individual constitutional rights were violated.

Unlike the shareholders in Wingate, the individual cheerleaders who are the

plaintiffs in this suit are not attempting to recover damages personally for a wrong

done to their organization. Id. at 719. Rather, the individual cheerleaders are

pursuing “a personal cause of action and personal injury.” Id.

      We find no support for the argument of Kountze ISD that the cheerleaders

who sued lose their individual rights to free speech by speaking as a group. The

fact that multiple individual cheerleaders contributed to the final message as a

group does not mean the individual cheerleaders were not harmed when the

message approved by the group was suppressed.

      It is undisputed that each of the individual cheerleaders who sued was

represented by their parents as that respective minor’s next friend and, on the date

of the filing of the lawsuit, was a minor and a member of the cheerleader squad.

Tex. Rule. Civ. Proc. 44. “Although a minor… may have suffered an injury and

thus have a justiciable interest in the controversy, [a minor] lack[s] the legal

authority to sue; the law therefore grants another party the capacity to sue on their

behalf.” Lovato, 171 S.W.3d at 849. Because each minor cheerleader was

represented by next friend, and each minor has alleged a breach of her

                                         43
constitutional right to freedom of speech, we conclude each minor has a justiciable

interest in the controversy and thus, standing. See id. We overrule this issue on

appeal. Having overruled all of the issues of Kountze ISD on appeal, we affirm the

trial court’s denial of the plea to the jurisdiction.

       AFFIRMED.



                                                 ______________________________
                                                        CHARLES KREGER
                                                             Justice

Submitted on April 1, 2016
Opinion Delivered September 28, 2017

Before McKeithen, C.J., Kreger and Horton, JJ.




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