NJPSA Legal Department and LEGAL ONE
In a 6-3 decision the Supreme Court in Kennedy v. Bremerton School District held that a school district violated the Free Exercise Clause of the First Amendment when it terminated a high school football coach for praying on the field after games. While the “high and impregnable” “wall of separation” referred to in the 1947 decision of Everson v. Ewing Board of Education, one of the early church-state cases affecting schools, was never impregnable, this latest case by the Supreme Court makes the wall of separation murkier and more difficult to discern, and may very well mark the beginning of the reversal of the precedents built since the Everson case.
The Plaintiff in the latest Supreme Court case, Joseph Kennedy, was a popular assistant coach at a public high school in the State of Washington. For eight years he routinely went to the 50-yard line after games and silently offered prayers, with students often joining him. When in 2015 an opposing coach said that it was “cool” that Kennedy was allowed to do this, Mr. Kennedy’s school district instructed him to stop this practice. While there was some factual disagreement over other issues in question, all parties agree that Kennedy continued to offer silent prayers after games. After advising him that his behavior was problematic and potentially in violation of the First Amendment, the school district decided to not renew Kennedy’s coaching contract in 2016.
When his coaching contract was not renewed, Kennedy brought a lawsuit claiming that the district had violated his First Amendment right of freedom of religious expression. Justice Gorsuch, writing for the majority, agreed with Kennedy, stating that the coach had only sought to offer a brief, silent and solitary prayer; that during this time “he was not instructing players, discussing strategy, encouraging better on-field performance or engaged in any other speech the district paid him to produce as a coach.”
That Kennedy was there as the coach, not as a private citizen, did not appear to matter to the majority of the Court. But it did matter to the three dissenting Justices. It was among the points made by Justice Sotomayor in her dissenting opinion in which she said that Mr. Kennedy’s stature as a coach and as a leader of the team meant that at least some students felt forced to participate, if for no other reason than to curry favor with their coach. Justice Sotomayor wrote that “students look up to their teachers and coaches as role models and seek their approval” and “students depend on this approval for tangible benefits. Players recognize that gaining the coach’s approval may pay dividends small and large, from extra playing time to a stronger letter of recommendation to additional support in college athletic recruiting.”
It is worth noting certain limitations that the Court made clear should remain in effect related to religious expression. For example, this case did not authorize the coach to lead prayers in the locker room before games, and in fact, the coach in this case agreed to stop that practice. In addition, this case did not authorize the coach to incorporate overtly religious messaging into his inspirational speeches to athletes, another practice that the coach had already agreed to stop. In addition, the Court took pains to point out that the case in question did not include any direct evidence from student athletes that they felt coerced to participate in prayers. The Court did not believe that second-hand evidence from a parent expressing concerns about coercion was sufficient to establish that it had occurred in the absence of students directly indicating that they had felt coerced.
Regarding allegations that the Coach had failed to carry out his job duty to supervise students after games when he was engaged in prayer, the Court noted that the school district routinely allowed staff members to briefly engage in other non-religious personal conduct during that same time period after games, such as talking with friends, texting, making restaurant reservations, etc. The Court stressed the difference between what a job description may say (e.g., the coach is responsible for supervising students at all times after a game) and what a school district may actually be doing, and held that in this case the widely held practice was to allow staff members to briefly engage in personal conduct during this time.
The majority decision saw the non-renewal of Mr. Kennedy’s coaching contract as a form of censorship of what it viewed as his free exercise of his religious speech. Justice Gorsuch, writing for the majority, said that the “Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and non-religious views alike.”
This latest case, testing the tension and the parameters of religious exercise in the public domain, marks a departure from prior cases.
In the matter of Sante Fe Independent School District v. Doe decided in 2000 with Justice Stevens writing for a 6-3 majority, the Court held that student-led prayers on the field at football games, even when attendance was voluntary, had the “improper effect of coercing those present in an act of religious worship.” Justice Stevens’ majority opinion rejected the school district’s central argument that the prayers were private student speech, and that because it could not be attributed to the school district it could not be considered an unconstitutional establishment of religion in violation of the First Amendment.
While there are factual distinctions between the Kennedy case just decided by the Court, and the earlier Sante Fe Independent School District case, the Gorsuch majority opinion in Kennedy makes it more likely that student-led prayers in the context of the Sante Fe Independent School District matter will be upheld in the future.
Similarly, in Borden v. East Brunswick Board of Education, a case decided by a Federal Appeals Court in the 3rd Circuit in 2008, the Plaintiff-coach took a “knee” in the locker room when the team captains led players in prayer. The Appeals Court, overruling the District Court, held that this constituted an endorsement of religion in violation of the Establishment Clause of the First Amendment. Judge Fisher in that case wrote that the “a reasonable observer would conclude” that the coach is endorsing religion when “he . . . takes a knee with his team in the locker room” while the players pray.
Based on the Kennedy decision, here too the likelihood is that the facts in Borden v. East Brunswick matter would be decided differently today.
The Supreme Court has always sought to balance the often-competing interests of the First Amendment’s religious clauses. While the First Amendment prevents the government from establishing any religion, or favoring one religion over another, it also prohibits the government from interfering with an individual’s free exercise of religion. Together, these clauses are known as the Establishment and Free Exercise clauses.
For most of the last 70 years the Court has generally adhered to the notion that any religious exercise in schools or at school functions, whether sanctioned by the school district or not, runs afoul of the Establishment Clause of the First Amendment. In more recent years, the Court appears to have shifted in favor of allowing some forms of religious exercise in schools. The Kennedy case marks the strongest and clearest departure from the metaphoric “impregnable wall” separating church and state referred to in the 1947 Everson v. Ewing Board of Ed. matter. Essentially, the majority in Kennedy said that because we live in a society steeped in religion, we cannot accept “the view that the only acceptable government role models for students are those who eschew any visible religious expression.”
The majority decision in Kennedy also made the point that not everything school employees do during their working hours constitute official conduct. If it were, Justice Gorsuch wrote that that a “school could fire a Muslim teacher for wearing a head scarf in the classroom or a Christian aide from praying quietly over her lunch in the cafeteria.”
As numerous news outlets have predicted, the Kennedy case will likely engender more litigation as school employees push the boundaries of what is permissible and what is not. So, stay tuned.
As always, contact NJPSA for legal advice on specific issues you are facing in the schools.
We also encourage you to look for additional guidance on issues of religion and schools in upcoming LEGAL ONE podcasts, workshops, and webinars.