Kennedy v. Bremerton School District, 597 U.S. __ (2022) (The United States Supreme Court concludes that a coach praying at mid-field following a high school football game was engaged in private religious expression protected by the Free Exercise and Free Speech Clauses of the First Amendment).
Background
Joseph Kennedy was a football coach at Bremerton High School. Like many other football players and coaches across the country, Kennedy made it a practice to kneel at mid-field and pray on the field at the conclusion of each game. Initially, Kennedy prayed on his own. But over time, some players asked whether they could pray alongside him, which Kennedy allowed. The number of players who joined Kennedy eventually grew to include most of the team and sometimes opposing players joined.
For several years, no one complained to the Bremerton School District about this practice. In 2015, the District directed that any religious activity on Kennedy’s part must be “nondemonstrative (i.e., not outwardly discernible as religious activity)” in order to avoid the perception of endorsement. Following that directive, Kennedy briefly abandoned his practice of saying his own quiet, on-field postgame prayer. Driving home after a game, however, Kennedy felt upset that he had “broken [his] commitment to God” by not offering his own prayer, so he turned his car around and returned to the field. By that point, everyone had left the stadium, and he walked to the 50-yard line and knelt to say a brief prayer of thanks.
Following a subsequent game, Kennedy bowed his head at midfield after the game, while his players were engaged in the traditional singing of the school fight song to the audience. Though Kennedy was alone when he began to pray, players from the other team and members of the community joined him before he finished his prayer. Shortly before the next game, the District wrote to Kennedy explaining that, while appreciative of his effort to comply with the District’s directive to avoid demonstrative prayer, a “reasonable observer” could think government endorsement of religion had occurred when a “District employee, on the field only by virtue of his employment with the District, still on duty” engaged in “overtly religious conduct.” The District thus made clear that the only option it would offer Kennedy was to allow him to pray after a game in a “private location” behind closed doors and “not observable to students or the public.” After the game ended, Kennedy knelt at the 50-yard line, where “no one joined him,” and bowed his head for a “brief, quiet prayer.” After the final football game, Kennedy again knelt alone to offer a brief prayer as the players engaged in postgame traditions. While he was praying, other adults gathered around him on the field. Later, Mr. Kennedy rejoined his players for a postgame talk, after they had finished singing the school fight song.
Shortly after the final game, the District placed Kennedy on paid administrative leave. In a letter explaining the reasons for this disciplinary action, the superintendent criticized Kennedy for engaging in “public and demonstrative religious conduct while still on duty as an assistant coach” by offering a prayer following the games. While Mr. Kennedy had received “uniformly positive evaluations” every other year of his coaching career, after the 2015 season ended, the District gave him a poor performance evaluation. Kennedy was not renewed for the next season.
After these events, Kennedy sued in federal court, alleging that the District’s actions violated the First Amendment’s Free Speech and Free Exercise Clauses. The United States Supreme Court ruled that the District impermissibly punished Kennedy for engaging in prayer following football games.
Discussion
The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression. A free exercise violation can be demonstrated by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not “neutral” or “generally applicable.” The contested exercise here did not involve leading prayers with the team. The District disciplined Kennedy only for his decision to persist in praying quietly without his students after three games in October 2015. Prohibiting Kennedy’s religious exercise was the District’s unquestioned objective, while it allowed other on-duty employees to engage in personal secular conduct. Thus, the Court concluded that forbidding Kennedy’s brief prayer was neither neutral nor generally applicable.
While noting that teachers, like students, do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” (Tinker v. Des Moines Independent Community School Dist.), the Court recognized that as a government employee, a coach acts on the government’s behalf and can convey its intended messages. Thus, when an employee speaks as a citizen addressing a matter of public concern, the Court’s cases indicate that the First Amendment may be implicated and courts must engage in a balancing analysis of the competing interests of the employee and the government employer.
A threshold question was whether Kennedy prayed in his capacity as a private citizen or as a District employee. The Court concluded that the timing and circumstances of Kennedy’s prayers—during the postgame period when coaches were free to attend briefly to personal matters and students were engaged in other activities—confirmed that Kennedy did not offer his prayers while acting within the scope of his duties as a coach.
The Court then considered whether the District’s interests as employer, to avoid liability for endorsement of religion, outweighed Kennedy’s right to engage in what the Court determined was private speech. The District asserted that its prohibition of Kennedy’s religious activity was justified because doing otherwise would coerce students to pray. The Court rejected the argument, concluding “A government entity’s concerns about phantom constitutional violations do not justify actual violations of an individual’s First Amendment rights.”
Practical Advice
The ruling essentially determined that the District punished the coach for engaging in a personal religious observance, based on a view that it had a duty to suppress that conduct to avoid the appearance of endorsement of religious activity. The crucial aspect leading to this ruling was that the coach’s prayer was considered private expression. Although the prayer occurred immediately following a school activity, the coach did not require students to join him and was not actively engaged in performing his duties. Had the coach sought to lead his team in pre-game or post-game prayers in the locker room, the outcome would have differed.
The decision may present challenges to school districts in determining whether school employees inclined to pray in a school environment are engaged in protected private expression or impermissibly promoting religion to students. As the dissenting opinion queried: “[i]f even judges and Justices, with full adversarial briefing and argument tailored to precise legal issues, regularly disagree (and err) in their amateur efforts at history, how are school administrators, faculty, and staff supposed to adapt? How will school administrators exercise their responsibilities to manage school curriculum and events when the Court appears to elevate individuals’ rights to religious exercise above all else?” Such situations will require particularized factual analyses and present the potential for claims of either impermissible religious endorsement or infringement.
