The United States Supreme Court held that the Free Exercise and Free Speech Clauses of the First Amendment protected a coach who engaged in “short, private, personal prayer” during times when employees were free to attend to personal business, and that the Establishment Clause – requiring the separation of church and state – did not justify the school district’s decision not to rehire him for the next season. Kennedy v. Bremerton School District, No. 21-418, 2022 WL 2295034 (June 27, 2022).
The facts, in this case, were highly disputed. According to the Supreme Court, the District initially warned an assistant high school football coach, Joe Kennedy, to avoid any motivational talks with students that included religious expression or prayers, to avoid suggesting, encouraging, discouraging, or supervising any prayers of students, and to engage in only non-demonstrative religious activity. Mr. Kennedy agreed to end his practice of incorporating religious references into his talks.
However, Mr. Kennedy sought to continue his private religious expression by engaging in a postgame prayer at the 50-yard line after students had the opportunity to leave the field and were engaged in other activities. He indicated he would neither request, encourage, nor discourage students from participating in these prayers. In response, the District forbid him from engaging in any overtly religious conduct while on duty, instead only permitting him to pray after a game in a private location behind closed doors and not observable to students or the public. When Mr. Kennedy continued to engage in prayer at the 50-yard line, the District placed him on administrative leave and refused to rehire him for failing to follow District policy regarding religious expression and failing to supervise student-athletes after games.
The Supreme Court held that the school district violated Mr. Kennedy’s Free Exercise and Free Speech rights. Of note to his Free Speech claim, the Supreme Court found that Mr. Kennedy’s speech was private speech, not government speech. Mr. Kennedy did not speak pursuant to government policy, was not seeking to convey a government-created message, and was not acting within the scope of his duties as a coach. Instead, he was praying during the postgame period when coaches were free to attend to personal matters, and while at least some students were engaged in other activities like singing the school fight song.
The District had argued its actions were necessary to avoid a violation of the Establishment Clause. The District relied on prior Supreme Court opinions finding violations of the Establishment Clause when a public entity is seen as endorsing religion by not stopping a practice like Mr. Kennedy’s. The District also argued that failing to stop Mr. Kennedy’s practices would amount to coercing students to pray.
The Supreme Court rejected both arguments, holding that the District’s merely appearing to endorse religion does not violate the Establishment Clause and does not justify refusing to rehire Mr. Kennedy. It held that: “An Establishment Clause violation does not automatically follow whenever a public school or other government entity ‘fail[s] 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.’” Instead, “the line’ that courts and governments must draw between the permissible and impermissible has to accord with history and faithfully reflect the understanding of the Founding Fathers” (internal quotations omitted). While the Supreme Court acknowledged that the Establishment Clause prohibits a public entity from forcing citizens to engage in religious exercise, it found no direct evidence of coercion in this case. The Court also noted that just because a religious exercise is visible to others does not make it coercive, including to high school aged students.
Student and employee free speech and religious exercise rights continue to pose challenging questions for school administrators. After this decision, administrators will want to review policies and practices to conform to the Supreme Court’s new test for violation of the Establishment Clause. School districts may no longer prevent employees from engaging in religious exercise merely because of concerns that the district will be viewed as endorsing religion. And, while districts continue to have the obligation to protect students from coercive religious practices, an employee’s personal and private religious practices, done during time when they are permitted to attend to their own business, is not coercive just because it is observable to others. Given the vague parameters of the standard announced by the Court for resolution of Establishment Clause concerns, this is likely an area of law that will continue to develop over the coming years. What is clear is that administrators should exercise caution when punishing or restricting personal and private religious practices.
If you have any questions about student issues, employee discipline, or First Amendment concerns, please do not hesitate to contact a DWK attorney in our Students, LEAP, and/or Litigation Group.