[co-author: Jenny Lee]*
On April 25, the Supreme Court heard oral arguments in the case Kennedy v. Bremerton School District, which we previously reported on here and here. As you may recall, the case involves a high school football coach, Joseph Kennedy, who was placed on administrative leave by his public school district for praying on the 50-yard line after games. This is the second time the case has come before the Supreme Court—in 2019, the Court declined to hear the case based on factual questions, though several conservative justices signaled their willingness to revisit the complex and interwoven First Amendment issues in the case. This January, the Court agreed to hear Kennedy’s appeal after the case circled back through the lower courts. We expect that the Court will issue a decision in this case as soon as later this month. The highlights from the oral argument below may provide insights into the anticipated ruling.
At issue is whether the coach’s prayer was a private act that may be protected by the Free Exercise and Free Speech clauses of the First Amendment, or whether the coach’s prayer took place while he was on duty as a public employee of the school district, and thus subject to the district’s ability to regulate his speech to avoid violating the Establishment Clause of the First Amendment prohibiting endorsement of religion.
Kennedy’s attorney Paul Clement argued that Kennedy’s prayer was private speech that was protected by the Free Exercise and Free Speech clauses, and that the lower courts erred in finding that Kennedy’s prayer was public speech. Clement stressed that the school district’s action against Kennedy was solely out of religious endorsement concerns, which arguably violated the First Amendment and ignored the Court’s precedent affirming that a school does not endorse private religious speech just because it fails to censure it. If the government censures speech solely because it is religious, Clement argued, strict scrutiny—the highest standard of review a court can use to determine whether a government act violated the Constitution—should apply, rather than any more lenient standard.
Bremerton School District’s attorney Richard Katskee argued that Kennedy was on duty as a public employee while engaging in prayer and ignoring the school district’s repeated efforts to accommodate his prayer. While the school district would permit their employees to have quiet prayers by themselves even if students could see them, Katskee emphasized that in this case, the coach insisted on audible prayers at the 50-yard line with students, legislators, and other members of the public and announced in the press that these prayers were “how he helps these kids be better people.”
Was the coach’s prayer public or private speech?
The Justices questioned Kennedy’s attorney Clement about the line between public and private speech, where the coach’s conduct would fall, and which standard was proper to analyze the issues in this case. Justice Clarence Thomas opined that the coach’s prayer was not a part of his job, considering that the school district was not aware of it at first and then objected to it. “Well, that’s music to my ears,” replied Clement, who then restated that if the prayer were private religious activity, it would be protected by the Free Exercise clause and the district’s attempt to censure it should be subject to strict scrutiny.
Chief Justice John Roberts asked whether the coach’s activity would fall under government speech if it were more extensive, such as praying audibly with his arms outstretched. Clement replied that such prayer might be considered government speech if there were an instructional component. In response to Justice Brett Kavanaugh’s question whether a captive audience would make speech public, Clement offered the examples of pro athletes Mohamed Salah and Tim Tebow, who celebrate with prayer in front of a stadium audience after scoring, and characterized their religious exercise as private speech—albeit without noting that they are private citizens and not public-school employees.
Justice Sonia Sotomayor laid out a series of hypotheticals about a teacher who says prayers in the classroom with students and asked Clement to weigh in whether, in each situation, her prayer would be considered private or public speech. When Clement stated that the teacher would be free to do whatever she wants after class ended even if students were hanging around, Justice Sotomayor countered that the teacher was not if she were required to be available to her students as part of her duties. Justice Sotomayor drew a parallel with Coach Kennedy, who admitted that his duties as coach continued after a game ended, when he had the duty to remain for two hours, escort players off the field, clean up, and conduct post-game wrap-up. Why can’t an employer tell an on-duty employee what they are allowed to do? Justice Sotomayor concluded. Clement responded that it would be permissible if the school applied a neutral rule that applied to all forms of conduct and did not only target the coach’s prayer.
Was the school district’s discipline of the coach lawful?
Throughout the questioning, Kennedy’s attorney Clement reiterated that the school district could have applied a neutral policy that was not based on religion in order to regulate the coach’s speech. However, Clement pointed out, the school district justified its disciplinary actions by explaining that it did not wish to appear to be endorsing the coach’s religion and religious practice. According to the record, the school district did not cite safety, coercion or any other concern besides religious endorsement.
Justice Elena Kagan suggested that the coach’s prayer could still be improperly coercive, especially for 16-year-old students who may not know the difference between a coach’s private prayer and prayer that fell within his instructional role, which students may feel coerced to join in order to gain his favor. The school district’s attorney Katskee agreed with this point, arguing that a school district may take adverse action against a coach or teacher for private religious speech that puts improper pressure on students to conform, potentially raising Establishment Clause issues even in the absence of public speech.
Several Justices returned to the issue of religious endorsement when questioning the school district’s attorney Katskee, asking why the school district did not cite coercion or safety in its letters and briefs as reasons for disciplining Kennedy. Why, they asked, did the district mention endorsement as its only concern? Katskee suggested that the Court could remand the case to the lower courts if it found that coercion, not endorsement, were the appropriate test for this case.
However, Katskee went on to argue, the Court should apply more flexible tests, and not strict scrutiny, to analyze the issues in the case. Under such tests, the Court would then analyze whether a person’s speech could be considered public speech—and whether the government’s action regulating the speech was lawful—based on multiple practical factors, including the time, manner, place, and a reasonable observer’s perspective of the speech. Katskee pointed out that unlike the coach, who argued that government regulation of political acts should be evaluated under a less stringent test while religious acts should be evaluated under strict scrutiny, the Court previously held that political and religious speech must be treated the same way, otherwise the government’s differing treatment of such speech would constitute impermissible viewpoint discrimination.
The Justices also questioned the reason for the school district’s disciplinary action. Justice Alito stated that in an employment discrimination case, when an employee says he was unlawfully fired, a court would look at the employer’s reason for the action taken. If the reason were unlawful, the employee would win. Katskee replied that while the school district gave religious concerns as its reason for taking action against the coach, the Court has historically looked not only at the given reason but also the entire record to determine whether an employer’s action was improper. In this case, Katskee argued, there was “an enormous pile of evidence” that the school district acted on other concerns, including the safety of students and control of their program and messaging. When Justice Alito dubiously asked whether an employer could win a case if it gave an unlawful reason simply “because the employer could have given all sorts of other lawful reasons,” Katskee replied that the school district did in fact state a lawful reason under the Establishment Clause.
What will the Court decide?
Together, the Supreme Court’s conservative majority appeared critical of the school district’s stated reason for disciplining the coach to avoid violating the Establishment Clause through endorsement. The Justices also expressed skepticism with the school district’s reliance in its briefs on the so-called Lemon test that the Court first laid out in a 1971 decision, in which the Court weighed three factors to determine whether the government violated the Establishment Clause. Both Justices Gorsuch and Kavanaugh noted that it had been decades since the Lemon test was applied by the Court, with Gorsuch suggesting that the Court might overrule Lemon by not applying it in this case.
Furthermore, the conservative Justices seemed reluctant to extend the Court’s decision in Santa Fe Independent School District v. Doe, in which the Court held that student-led, student-initiated prayer at football games violates the Establishment Clause. Justice Kavanaugh said, “Santa Fe applies, you know, logically to locker room or huddle speech, but we’re not going to extend Santa Fe to something beyond that.”
Finally, Justice Amy Coney Barrett ended the questioning by returning to the initial issue raised in oral argument—whether or not the coach’s prayer was public speech. “If we disagree, we think it’s private speech, there’s no Establishment Clause because no state action, right?” Katskee replied that in rare cases, private speech by school employees could trigger Establishment Clause issues, but Justice Barrett appeared unconvinced.
We will continue to keep you updated on this case.
*Third-year law student at Loyola University Chicago School of Law, currently a law clerk at Franczek P.C.