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SCOTUS Holding in Kennedy v. Bremerton School District Creates Implications for School Districts Supervising Religious Expression of Employees

On June 27, the Supreme Court of the United States (“SCOTUS”) ruled in Kennedy v. Bremerton School District that a high school football coach’s post-game prayer on the 50-yard line was protected by the First Amendment’s free speech and free exercise of religion clauses. The Court also held that the U.S. Constitution neither requires nor permits public entities, such as school districts, to suppress personal religious expression by their employees. Such a holding creates practical consequences for school districts as they supervise the religious expressions of teachers and other employees in the workplace.

There has not been a case addressing religious expression in schools to come from the Supreme Court since 2000[1], but the Court felt the facts of this case presented a novel question of whether the personal expression of an employee’s religious beliefs during on-the-clock moments, where they are not actively performing their job, is protected expression under the First Amendment. The Court held that it was.

Joseph Kennedy was the assistant varsity football coach at Bremerton High School, a public school in Bremerton, Washington. He was in the practice of leading his team in a prayer during a pre-game huddle and independently praying at the 50-yard line after each game. Kennedy complied with the district’s instructions to stop praying with students before the game during mandatory pre-game huddles, but sought to continue his post-game prayers stating that they were independent expressions of his religious belief conducted at a time when his job responsibilities ended. The school district disagreed that his job responsibilities ended when the football game did.

Kennedy continued to pray on the field for two more games, and the district placed him on administrative leave. The district then did not seek to renew his contract, prompting the coach to sue the district arguing that he had a right to independently pray after the game under the First Amendment and the free exercise of religion clause.

“This case looks very different from those in which this court has found prayer involving public school students to be problematically coercive,” Justice Gorsuch wrote in his opinion. “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.”

However, the district pointed out that Kennedy’s actions inspired team members to voluntarily join him in prayer on the field in front of an audience of spectators who had attended the game. The district and dissenting members of the Court argued that such displays of religious expression, which inspire the participation of others, effectively create a quasi-mandatory prayer for players who do not wish to be excluded from team activity. Simply put, the wish to be accepted and included – a hallmark emotion felt by primary and secondary-age children – could push students who would not otherwise choose to participate in a prayer to do so.

Nevertheless, the Court held that Kennedy’s post-game prayer was protected speech, and that the district’s conduct violated both the free exercise and free speech clauses of the First Amendment.

First, the Court sided with the coach’s view that he was not acting within his job duties when he prayed at his workplace, after the conclusion of the game. Justice Gorsuch wrote, “He [was] not speak[ing] 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.” Justice Alito agreed, writing that Kennedy’s expression “occurred while at work but during a time when a brief lull in his duties apparently gave him a few free moments to engage in private activities,” and thus he was acting in a “purely private capacity.” Second, the Court rejected the argument that the visible nature of Kennedy’s prayer coerced the students. The Court noted that the students who joined him in prayer on the field were doing so of their own choice, and other students were free during that time to conduct their own personal activities, such as calling for a ride.

This SCOTUS decision seems to suggest that, if it is going to be protected, an employee’s expressions of religious beliefs during the work day must only occur during moments where the employee is allowed to engage in private activities. Further, such religious expressions must not coerce student participation.

For questions about this decision, reach out to the School Law Practice Group at Stock and Leader!

[1]  Santa Fe Independent School District v. Doe (2000).

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