A group of middle school cheerleaders sued when their school prohibited them from displaying banners containing religious messages. The school district filed a plea to the jurisdiction and, eventually, an interlocutory appeal.

After the suit was filed, the school district adopted a new policy stating, in somewhat elliptical terms, that it was “not required to prohibit messages on school banners . . . that display fleeting expressions of community sentiment solely because the source or origin of such message is religious,” but “retains the right to restrict the content of school banners.” Although that policy does not provide a definitive answer on whether future banners will be permitted, it purports to change the rules under which district officials might consider a request. The school district argued on appeal that this policy change mooted the case, depriving the courts of subject-matter jurisdiction, and the court of appeals agreed.

The Texas Supreme Court reversed, stating that it was unpersuaded that the controversy had been resolved. The opinion notes that, in suits brought to challenge public policy, a defendant cannot moot the challenge merely by stating that it has changed its mind: "If it did, defendants could control the jurisdiction of courts with protestations of repentance and reform, while remaining free to return to their old ways. This would obviously defeat the public interest in having the legality of the challenged conduct settled."

In framing the test to be applied, the Court focused on the risk that the conduct would recur. It quoted language from past decisions saying that the defendant arguing for mootness bears "a 'heavy' burden" to show that "subsequent events make 'absolutely clear that [the conduct] could not reasonably be expected to recur."

The Court held that this situation fell short of mootness. It noted, in part, the district's continued position that, while "it does not have any current 'intent' or 'plan' to reinstate that prohibition," it was reserving the right to do so. Because the case was not moot, the Texas Supreme Court reversed and remanded the case to the court of appeals so that it could consider the other issues raised by the district in its plea.