by Mark Timmerman
Yesterday, the Supreme Court of the United States released its opinion in Kennedy v. Bremerton School District.
In 2015, an assistant football coach named Joseph Kennedy, at Bremerton High School in Bremerton, Washington, was reprimanded by District administration for actions such as leading students in a pre-game prayer, conducting post-game talks that included religious content, and leading students in a prayer at the 50-yard line after games. The District, which is public, was concerned that his religious conduct was causing the District to violate the Constitution of the United States”™ Establishment Clause, which prohibits the government from “establishing” a religion. The District’s reprimand immediately became national news. Some members of the public felt the District had overreached in attempting to stop the coach from engaging in religious activity, while others praised the District’s efforts. The coach agreed to many of the District’s demands, but insisted on continuing to say a private prayer to himself at the 50-yard line after each football game. The District reprimanded his continued prayers, and he was ultimately fired from his job. He sued, alleging that the District violated his rights under the Free Exercise clause and the Free Speech clause of the First Amendment, among other claims.
Yesterday, after six years of litigation, the Supreme Court of the United States ruled the District had indeed violated Mr. Kennedy’s First Amendment rights.
Here are the key takeaways:
- Free Exercise
- The Free Exercise Clause in the First Amendment protects a citizen’s right to practice their religion as they please. Generally, the government may only restrict a person’s Free Exercise rights if a law is neutral and generally applicable. The Court found the District’s directives towards Mr. Kennedy failed the neutrality test because they sought to restrict his religious practice of praying after the game because it was religious. The District’s directives also failed general applicability test because although the District said he “failed to supervise the players” after the game (supervising players post-game was presumably a generally applicable rule for all Bremerton coaches), the Court found that the District allowed other football coaches to do secular activities for brief moments after the games, like make a phone call to their spouses, or get a dinner reservation, or chat with friends.
- Free Speech
- The Free Speech Clause of the First Amendment allows individuals to express themselves without government interference or regulation. Generally, the government may only restrict a government employee’s free speech rights if it strikes the right balance of the Pickering–Garcetti balancing test. First question: Was the employee speaking pursuant to his official duties? If yes, usually the Court does not interfere with the employer’s ability to control the speech of the employee. Second question: If the employee was not speaking pursuant to his or her official duties, was the employee speaking as a private citizen on a matter of public concern? If yes, then the Court engages in a delicate balancing test, balancing the interests of the employee to the interest of the government in being able to run efficiently.
- In this case, both the District and Mr. Kennedy agreed that he was speaking on a matter of public concern (prayer). However, they disagreed about whether he was speaking pursuant to his official duties. The Court held that he was not speaking pursuant to his official duties, but instead was praying as a private citizen. The Court stated, “He did not speak pursuant to government policy. He was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach. Simply put: Mr. Kennedy’s prayers did not owe their existence to Mr. Kennedy’s responsibilities as a public employee.” (internal citations and quotations omitted).
- The Court next determined whether the District had a good-enough reason to justify its intrusion of Mr. Kennedy’s First Amendment rights. The District can regulate his speech only if it has a compelling interest and if its regulations were narrowly tailored to achieve the compelling interest.
- Here, the District argued that the compelling interest it had in regulating Mr. Kennedy’s conduct was its concern about violating the Establishment Clause. In other words, the District was concerned that the coach’s public Christian prayers would send the message to the students and public that the District was establishing Christianity as the government’s religion.
- The Court found that the District was wrong in having such a concern, and should not have used its fear about violating the Establishment Clause as a way to suppress Mr. Kennedy’s Free Exercise and Free Speech rights. In deciding whether a potential violation of the Establishment Clause was enough of a compelling reason to justify the District’s disciplinary action against Mr. Kennedy, the Supreme Court analyzed the case using a “coercion” test.
- The Court held there was no evidence in the record to suggest any coercion of students in this case. The Court stated that, of course, the Establishment Clause prohibits the government from making a religious observance compulsory and may not force citizens to engage in a formal religious exercise. But here, the District itself had conceded back in 2015 that it had no evidence that students were directly coerced to pray with Mr. Kennedy. When asked by the District to do so, Mr. Kennedy ended his practice of engaging in prayer while presenting locker-room speeches to students, and he ended his practice of postgame religious talks with his team. The Court found that the only prayer he sought to continue was a prayer he gave alone on the 50-yard line at the end of football games. Mr. Kennedy made a plan to wait to pray until athletes were occupied, so he wouldn”™t be imposing on students in any way. Yes, some people would have seen him praying on the field, and people close at hand maybe even heard him. But this is not impermissible coercion. “Learning how to tolerate speech or prayer of all kinds is part of learning how to live in a pluralistic society, a trait of character essential to a tolerant citizenry.” (internal citations and quotations omitted). The Court further stated, “secondary school students are mature enough to understand that a school does not endorse, let alone coerce them to participate in, speech that it merely permits on a nondiscriminatory basis.” (internal citations and quotations omitted). While some students may be offended at the sight of certain religious expression or speech, “offense” does not equate to “coercion.” Permitting private speech is not the same thing as coercing others to participate in it.
- As for the District’s argument that as a football coach, Mr. Kennedy wielded tremendous influence over student players, and therefore there was an inherent risk that he could coerce the students, the Court said there was no evidence in the record that any students were coerced by his prayers or that they felt their playing time on the field might be decreased if they did not participate in praying with Mr. Kennedy.
- The Court reiterated that “coercion” is still a hallmark of an Establishment Clause violation, but the problem for the District in this case is that the Court found no evidence that coercion actually occurred. Indeed, the Court found, “the prayers for which Mr. Kennedy was disciplined were not publicly broadcast or recited to a captive audience. Students were not required or expected to participate.” (internal citations and quotations omitted). According to the Court, Mr. Kennedy was simply “engaging in a brief, quiet, personal religious observance.”
- Important Evidence in Case
- Direct quotes from letters of reprimand sent by Superintendent to Mr. Kennedy that demonstrated what the District was concerned about (in this case, violating the Establishment Clause) and what it was asking of Mr. Kennedy going forward, including legal theories supporting the District’s position (which the Supreme Court held were wrong theories)
- Direct quotes from Mr. Kennedy and various school officials that demonstrated their mindsets at certain moments
- Direct quotes from a letter sent by Mr. Kennedy’s legal counsel to the District explaining that he will not cease his practice of praying after each game because he has a right to do so, and asked for accommodations in order to continue the practice
- Direct quotes from District policies
- Direct quotes from emails between District administrators, including on email where the Superintendent suggested that Mr. Kennedy might have a right to conduct a private prayer on the 50-yard line. Two days after that email, however, the District wrote to Mr. Kennedy asking him to cease praying after games at the 50-yard line.
- A question-and-answer letter sent out to the public by the District
- Performance evaluation of Mr. Kennedy
- Last Thoughts from the Supreme Court
- A school district’s act of merely allowing an employee to privately and silently pray does not equate to an Establishment Clause violation. “An Establishment Clause violation does not automatically follow whenever a public school or other government entity fails to censor private religious speech. Nor does the Clause compel the government to purge from the public sphere anything an objective observer could reasonably infer endorses or partakes of the religious.” (internal citations and quotations omitted).
- The Constitution does not require schools to prohibit teachers from engaging in any demonstrative religious activity in order to prevent an Establishment Clause violation. The Court says the opposite is true: students and teachers do not shed their constitutional rights at the schoolhouse gates, including the constitutional rights to free exercise of religion and free speech.
- The Establishment Clause does not give school districts “a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination.”
This was not a unanimous decision by the Court. The dissenting Justices highlighted the media frenzy and protests that occurred after the District first reprimanded Mr. Kennedy, and how the District should have the right to restrict the coach’s actions in order to maintain a safe and efficient learning environment for students. The dissenting Justices also highlighted the powers of coercion inextricably tied to people in our society like football coaches, who are tasked with leading and teaching young and vulnerable people. Ultimately, the dissent argued that the District did not violate Mr. Kennedy’s rights.
Cases such as this one can be complicated and full of emotion. The law in this area is ever-changing. If you have questions about how this decision might affect your school or institution, please contact your Tueth Keeney education law attorney.
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Mark T. Timmerman practices in the areas of Missouri school education, higher education, constitutional law, litigation, and labor & employment law. He works primarily with educational institutions, including public school districts, charter schools, and private schools, as well as public and private universities. He advises his clients on a range of matters including employment matters, harassment and discrimination disputes, student rights, and various constitutional issues. Mark focuses on making sure his clients are pointed in the right direction from the very beginning of a legal dispute, and he enjoys counseling clients daily. Prior to joining the firm, Mark was a trial attorney in the Missouri State Public Defender System in its Clayton, Missouri office.