On January 14, 2022, the Supreme Court granted certiorari to determine whether a school district was within its rights in telling a coach not to continue to kneel and pray at the 50-yard line after his team’s games.
From 2008 to 2015, Joseph Kennedy worked as an assistant varsity football coach for a public school, Bremerton High School. As a devout Christian, Kennedy had a practice of kneeling at mid-field to pray immediately after each game. These prayers were usually silent and lasted 30 seconds, but they were in full view of players and spectators. Over time, players began joining in and the prayers evolved into short motivational speeches with religious overtones, delivered at the fifty-yard line while football players knelt around the coach. At least one player privately complained about participating in the prayers but feared he would lose playing time if he did not join. Bremerton School District’s (“the District”) policies for religious-related activities and practices did not explicitly address religious expression by on-duty staff, but the District twice directed Kennedy to avoid demonstrative religious activity when in view of students. The coach posted on Facebook that he “might have been fired for praying” and decried the District’s directives in local and national media appearances. When the coach continued his post-game prayers, the District placed him on paid administrative leave. After Kennedy’s contract expired at the end of the 2015 season, he chose not to reapply.
The coach sued the District, alleging that it had violated his rights under the Free Speech and Free Exercise Clauses of the First Amendment.
Free Speech and Free Exercise Clauses
This case places two bedrock constitutional principles on a collision course. The Free Speech and Free Exercise Clauses protect private religious speech. The Establishment Clause prohibits public schools from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred. In Garcetti v. Ceballos, the United States Supreme Court addressed the perennial issue of when religious expression by a government employee is protected by the Free Speech and Free Exercise Clause or prohibited by the Establishment Clause: “[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” 547 U.S. 410, 421 (2006) (emphasis added).
Ninth Circuit Ruling and Initial Supreme Court Appeal
In 2017, the Ninth Circuit ruled that Kennedy offered his prayers “as a public employee” and therefore was not entitled to First Amendment protection. The coach appealed to the Supreme Court, which declined to hear the case until the Ninth Circuit definitively determined whether Kennedy lost his job because of his religious expression or for some other reason. Justice Alito, joined by Justices Thomas, Gorsuch, and Kavanaugh, concurred in the denial, but took the unusual step of writing separately to express serious doubts about the Ninth’s Circuit’s conclusion: “The Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.” On remand, the district court concluded that the District had suspended Kennedy because of the “risk of constitutional liability associated with Kennedy’s religious expression” and granted summary judgment for the District. The Ninth Circuit affirmed, stating, “[o]ur holding . . . has not changed.”
The Ninth Circuit again held that the coach’s prayers were government speech by a public employee, emphasizing that Kennedy was “clothed with the mantle of one who imparts knowledge and wisdom,” and on the football field of a public school—“a location that he only had access to because of his employment”—during a time when he was “generally tasked with communicating with students.” The Ninth Circuit went even further, writing that even if the coach’s prayers were private speech, the District’s response was permissible viewpoint discrimination. In the Ninth Circuit’s view, the District had every right to be concerned about an Establishment Clause violation because Kennedy’s religious expression could be imputed to the District unless the District put a stop to it.
Second Appeal to the Supreme Court
The coach appealed again, imploring the Supreme Court to “confirm that a public school does not own every on-the-job expression that its teachers or coaches may make around students, and that the First Amendment does not demand that schools purge from the public sphere all that in any way partakes of the religious.” This time, the Court granted certiorari. As articulated in Kennedy’s petition, the “threshold issue” for the Supreme Court is whether the coach’s “religious expression belongs to Kennedy or the government.”
What does this mean for you?
The Court is expected to hear oral arguments in April 2022 and issue an opinion in the summer of 2022. Since August 2017, when the Ninth Circuit issued its first opinion in this case, the composition of the Supreme Court has changed dramatically. Justice Kennedy retired in 2018 and Justice Ginsburg passed away in 2020. Justice Gorsuch joined the Court in 2017, followed by Justice Kavanaugh in 2018 and Justice Barrett in 2020. Given that the Supreme Court’s new conservative majority has been protective of individual religious rights, many observers expect this case to be decided in the former coach’s favor. Regardless of the outcome, this case has the potential to reshape the legal parameters for religious expression in K-12 public schools. If the Supreme Court overrules the Ninth Circuit, the First Amendment rights of public school employees will be expanded, particularly with regard to religious speech and conduct. Depending on how the Supreme Court ultimately reconciles the Free Exercise Clause and the Establishment Clause, K-12 schools may need to rethink their existing policies and practices for religious expression by employees. We will continue monitoring this case, so be sure to check back and subscribe to our blog for the latest on thisand other Supreme Court decisions impacting school districts.