In the Supreme Court’s recent decision in Kennedy v. Bremerton School District, ___ U.S. ___, 2022 WL 2295034 (2022)(Bremerton), the Court considered a government employee’s claim of infringement on his religious rights. Coach Kennedy alleged that the Bremerton school system had a policy that was neither “neutral” to religion nor “generally applicable,” i.e. the policy was applied in a way that only burdened employees’ religious freedoms. In such claims, when the employee makes a sufficient showing, the burden shifts to the government, which must demonstrate its policies or actions were justified by a compelling state interest and narrowly tailored in pursuit of that interest to satisfy the “strict scrutiny” standard of review. The Court found the school system’s policies and their application violated Kennedy’s religious rights under the 1st Amendment.
As described by the Court, at the conclusion of each high school football game Coach Kennedy gave “thanks through prayer” briefly by himself “on the playing field.” The Court also characterized Coach Kennedy as willing to defer his religious exercise “until the game is over and the players have left the field” but did not find that he was “leading prayers with the team or before any other captive audience.” The Court noted the school system disciplined Coach Kennedy for praying quietly without his players after three games in October 2015.
This case is notable for the school system’s admissions. The school system conceded that there was “no evidence that students [were] directly coerced to pray with Kennedy;” that after football games, its coaches were free to engage in all manner of private speech; and that its policies were not religiously neutral, as they restricted the coach’s actions based in part on their religious character, e.g. by forbidding “any overt actions on Mr. Kennedy’s part, [which would appear] to a reasonable observer to endorse even voluntary, student-initiated prayer.”
The Court found that Coach Kennedy’s prayer was private non-governmental speech because at the time of these prayers, while kneeling on the fifty-yard line shortly after the game ended, he was not engaged in speech “ordinarily within the scope” of his duties as a coach, as his job description left time for “a private moment after the game” to call home, check texts, etc.
Additionally, the Court noted that Coach Kennedy’s prayers were not pursuant to government policy, did not convey a government-created message, or in any way relate to his coaching or instructional duties to his players. The Court compared his prayers at the fifty-yard line to a Muslim teacher wearing a headscarf in the classroom or a Christian aide praying quietly over her lunch in the cafeteria. As it would be a violation of the First Amendment to discipline those staff, the Court reasoned, so too would it be improper to penalize Coach Kennedy for his actions.
The Court also rejected any claim that Coach Kennedy’s actions directly coerced students to participate. As to any claim of indirect coercion, the Court found that “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.” As to reports from parents that their children felt an obligation to participate in Kennedy’s prayer, the Court found these reports to be hearsay and not related in time to the prayers at issue in the case.
The Court also found that the District’s policies were also not generally applied. The school system had recommended against rehiring Coach Kennedy because he “failed to supervise student athletes after games.” The Court implied this rationale was pretextual because this postgame supervisory requirement was not applied in an evenhanded, across-the-board way, as other members of the coaching staff were not disciplined for failing to supervise students briefly after the game, instead visiting with friends or taking personal phone calls.
The Bremerton decision is notable for its jettisoning of the “endorsement” test from Lemon v. Kurtzman, 403 U.S. 602 (1971). Under Lemon, a government action could be reviewed in light of its purposes, effects, and potential for entanglement with religion. Later cases required government entities to consider whether a “reasonable observer” would find the government’s action constituted an “endorsement” of religion. In Bremerton, the Court unequivocally and vehemently struck down Lemon’s endorsement test as “ambitious, abstract, and ahistorical.” As a result, Lemon and its offshoots are no longer viable tests for determining whether the actions of teachers, coaches, and other government employees are engaged in violations of the Establishment Clause.
Instead, the Court directed that when government entities consider religious practices by their employees, they must focus on the Free Exercise and Establishment clauses’ original meaning and history. The Court found that a “natural reading” of the First Amendment suggests that the Free Exercise and Establishment Clauses have complementary purposes, and that an Establishment Clause violation does not arise simply because a public school or other government entity failed to censor private religious speech. The Court commented that “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.’”
While overruling Lemon, Bremerton still recognizes that a policy barring religious coercion by government employees is still viable. Such a policy would be grounded in “references to historical practices and understandings” i.e., the type of forced or compelled speech or religious activities commonplace in Colonial times and which the framers of the Constitution and the Bill of Rights clearly sought to avoid. Government employees should not direct students in prayer, as the Court “has long held that government may not, consistent with a historically sensitive understanding of the Establishment Clause, ‘make a religious observance compulsory.’ [….] Government ‘may not coerce anyone to attend church,’ nor may it force citizens to engage in ‘a formal religious exercise,’ [….] No doubt, too, coercion along these lines was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.” (emphasis added). Barring school employees from organizing prayer groups is therefore still allowed under Bremerton.
The Court’s opinion in Bremerton hinges on 1) the admissions by the school system, e.g. that for a brief period after the game Coach Kennedy was entitled to “a private moment” and that its discipline of the coach was related to his religious practice and not generally applied, and 2) the Court’s finding that the Coach’s prayer at the end of the game was not part of his work duties, comparing it to an employee wearing religious garb or saying a prayer at meals.
Bremerton finds that religious acts of a government employee, such as wearing religious garb or silent prayer without more are not government acts. School systems may want to consider issuing a disclaimer that any religious acts of employees during “free moments” are simply their personal free exercise of religious liberties, not an act by the school system to favor one religion over another or to favor religion generally.
School systems may also want to review the period of time a school employee is working and when they are “off the clock” and not engaged in work, when the school system was not responsible for their religious (and other) actions. Staff training for administrators on these policies and the rights of employees to engage in religious practices should also be conducted.
As the Court repeatedly identified damaging admissions by the Bremerton School District, it would behoove schools and school systems to take proactive steps in advance of the coming school year to reduce the risk of litigation arising from the religious impact of school policies. Failure to do so may put the school system in the unenviable position of having to make damaging admissions that would tend to undermine defenses of the policy’s neutrality.
As a first step, any school policies or procedures that are based upon concerns of “religious endorsement” should be re-examined and re-framed so as to make sure that they properly safeguard against coercion of students. Second, school systems should re-examine the duties of coaches and other employees. Do they have latitude to engage in personal activities at the end of an event, or are they expected to continue their direct supervision of students? These questions may be trickier than they seem, as actual personnel practices are often not strictly compliant with personnel policy or procedure. Reining in these practices may be easier said than done!
 The dissent’s recounting of the facts, including the scope of Coach Kennedy’s work responsibilities, is strikingly at variance with that of the Court.