By Charles J. Russo
The Supreme Court has consistently banned school-sponsored prayer in public K-12 schools, whether at the start of the school day, during graduation ceremonies or before football games. Under the Equal Access Act, the Supreme Court has affirmed that students may organize prayer and Bible study clubs during non-instructional hours. Even so, school staff and outside adults may not actively participate.
Lower courts have mostly forbidden public school teachers from openly praying in the workplace, even if students are not involved. Yet the Supreme Court has not directly addressed such a case – until now.
Kennedy v. Bremerton School District, a case from Washington state, scheduled for oral arguments on April 25, 2022, could usher in more religious activities by teachers and other staff in public schools.
At issue is whether a school board violated the rights of Joseph Kennedy, a football coach it suspended, and whose contract it did not renew, because he ignored its directive to stop kneeling in silent prayer on the field after games. Kennedy claims that the board violated his First Amendment rights to freedom of speech and freedom of religion, along with his rights under the Civil Rights Act, which prohibits employment discrimination.
The Supreme Court faces two key questions: whether prayers public school employees say in front of students are protected by their First Amendments rights; and, if they are, whether educational officials must still prohibit them in order to avoid promoting particular religions and violating the Establishment Clause.
From my perspective as a specialist in education law, the case is noteworthy because the court should resolve sticky questions surrounding whether public school employees can pray when supervising students, or if doing so crosses the line and becomes impermissible government speech.
Kennedy v. Bremerton also reflects the inherent tension between the First Amendment’s two clauses on religious freedom: The Free Exercise clause protects individuals’ right to practice their faiths as they wish, while the Establishment Clause forbids the government from “establishing” a religion.
In other words, a tension exists between public employees’ right to religious expression within the boundaries of the law and employers’ needs to avoid violating the Establishment Clause.
Facts of the case
In 2008, Kennedy, a self-described Christian, worked as head coach of the junior varsity football team and assistant coach of the varsity team at Bremerton High School. He initially knelt on the 50-yard line after games, regardless of the outcome, offering a brief, quiet prayer of thanks.
While Kennedy first prayed alone, eventually most of the players on his team, and then members of opposing squads, joined in. He later added inspirational speeches, causing some parents and school employees to voice concerns that players would feel compelled to participate.
The school board directed Kennedy to stop praying on the field because officials feared that his actions could put it at risk of violating the First Amendment. The government is prohibited from making laws “respecting an establishment of religion, or prohibiting the free exercise thereof” – often understood as meaning public officials cannot promote particular faiths over others.
In September 2015, school board officials notified the coach that he could continue delivering his inspirational speeches after games, but they had to remain secular. Although students could pray, he could not. Even so, a month later Kennedy resumed his prayers. He had publicized his plans to do so, and was joined by players, coaches and parents, while reporters watched.
Bremerton’s school board offered accommodations to allow the coach to pray more privately, which he rejected. At the end of October, officials placed him on paid leave for violating their directive, and eventually chose not to renew his one-year contract. He filed a suit in August 2016.
Lower court rulings
The coach’s suit raised two major claims – namely that the school board violated his rights to freedom of speech and religion. However, the Ninth Circuit twice rejected Kennedy’s claims, in 2017 and 2021, resulting in his appeal of the second case to the Supreme Court.
The Ninth Circuit denied Kennedy’s claim that he had the right to private free speech on the field, reasoning that because he was a public employee, reasonable observers could have assumed his prayer had the board’s support. In particular, the court found that he acted as a public employee, not a private citizen. The court did explain that educators are free to display their faith on their own time, such as when Kennedy sat in the stands as a fan during a game after he was suspended.
Turning to Kennedy’s freedom of religion claim, the court was satisfied that the school board’s restrictions on his activity met a well-established principle: Public officials have to demonstrate a compelling government interest before they can limit someone’s fundamental rights, such as freedom of religion, and the restrictions must be narrowly tailored to achieve that interest.
Here, the court accepted the board’s position that it had a compelling interest to avoid violating the Establishment Clause. In so ruling, the court balanced the tension between the constitutional rights to religion, and from religion – the Free Exercise Clause, and the Establishment Clause, respectively.
The Ninth Circuit also rejected the coach’s claims under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, religion, sex or national origin. Nor did the court accept his claims that the board failed to accommodate him, or that officials retaliated against him in not renewing his contract.
As part of its analysis, the Supreme Court is likely to consider whether the coach risked sending the message he was acting with the school board’s approval, as a form of protected speech, or if his prayers were unprotected private speech.
In addition, the court may address whether Kennedy failed to act as a role model, as is expected of educators. Courts consistently agree that school employees who work with students forgo some rights by virtue of their positions. For example, the Seventh Circuit affirmed that a school board in Indiana could dismiss a teacher who violated its policy by not remaining neutral about current events in class.
As in Kennedy, boards can choose not to renew the contracts of employees who violate their policies. But until now, public employees on the job who ignored their employer’s lawful policies have been unable to claim that they were exercising their rights to freedom of religion or speech as a defense. It remains to be seen whether the court will acknowledge that educators cannot ignore lawful directives at work, in order to avoid unduly influencing their students, or whether the justices will open the door to granting teachers greater freedom of expression.
As is often the case in high-profile disputes, the Supreme Court is expected to rule in late June or early July. While the case is unlikely to end disagreements over public employees’ prayer as free speech, in my view, the justices will likely walk a fine line in balancing the interests of educators who wish to pray at work and school boards seeking to avoid violating the Constitution.
Charles J. Russo is Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law at the University of Dayton.
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This country was built under One Nation UNDER GOD. Yet we make all kinds of accommodations for those that have “special” needs that God otherwise calls abominations in His eyes. We make accommodations for other religions in our schools to have specials hours of prayer yet for this country’s God in which it was built upon…we erase it from our schools and our church’s distort the bibles meaning for the sake of their own interpretations. I have a big problem remembering the Sabbath which is SATURDAY and the majority are following God’s commandment on a Satantic worship day that is SUNday. Yes SUNday is the day pagans would worship their sun God Isis. Constantine the Roman ruler slipped that in and the Vatican went along with that and folks all of you have been hoodwinked ever since. Maybe this world would be a better place if we really did follow God’s 10 commandments instead of just an interpretation. When I challenge any preacher or pastor or priest the only excuse I get is …” Well Jesus performed miracles on Saturday and that was a day of rest so that made it OK Not to follow the commandment “remember the Sabbath to keep it holy.” I call BS! Jesus was God he could do what he damn well pleased. We continue to negate God’s word in our everyday lives. In our Schools where He should most importantly should be placed. What a sad place we have Reached. Instead we push abominations on our children. Satanic rituals on them and say those are OK instead of love, integrity, and honesty and virtues of God. Instead we now teach principalities of darkness. The Bible speaks of these times we are living…..
20 They say that what is right is wrong and what is wrong is right; that black is white and white is black; bitter is sweet and sweet is bitter.
I would say may God have mercy on our souls….but unless we change our thinking He will not. So wake up people! You have elected a PEDOPHILE as a president for this country’s leader along with a long list that went out last year of people who were ARRESTED in our offices of leadership at the states levels but we were too busy looking at Dr Susse books they way were illustrated for decades. They got you again folks! While that arrest list went out you were looking at the Dr. Susse books. Hoodwinked again. When are you going to learn? Coach Kennedy is a hero a better teacher than most. Leave the man alone. You might actually learn something from him. May our God certainly Bless this man. 🙏. On that note….signing off.
Our Constitution is a secular document. It does not mention “god” even once. It mentions religion twice. The first is that there shall be no religious test to hold office in the US. The second is in the First Amendment which prevents Congress (government) from establishing any religion or prohibiting the free exercise of religion. The country was founded on the principle of E Pluribus Unum (Out of many, one). The Knights of Columbus initiated a campaign in 1951 for the public adoption of the phrase “under God” in the U.S. Pledge of Allegiance.
The issue is simple. Government and government employees (teachers) shall not impose their religion on their students.
As long as there are pop quizzes and tests, there will be spontaneous prayer in school. Those students who have not studied will resort to prayer and they will be rewarded with “D” and “F” grades.
Dennis C Rathsam says
Your right 100%!!!!! Everyone needs to pray, maybe God will shine through the mess some folks have made of the USA, and restore all that was good in America.
Okay, this is precisely why I stay away from organized religion! Just try to imagine how the holier than thou Christians (I feel for you, Jesus) would react if the coach put down a rug, started praying to Allah, and the kids joined in? Pray at home.
WOW! Who’s GOD do you speak of? How do I know YOUR GOD is better than the guy down the streets GOD? “PEDOPHILE” as a President? You are a wacko and your comments mean zilch in the eyes of my GOD. Oh and NO this country was not built “One Nation UNDER GOD”. There were many religions along the coastal areas of the fledgling America that have faded with time or been absorbed, many of them would not recognize this GOD you speak of. In to the interior most families didn’t even have a bible and would be lucky if a traveling preacher rode by once a year, many didn’t even practice a prescribed religion as we know it. Let’s not forget the indigenous peoples that were here long before any European even thought about making a journey to a new land, they had there own GOD’s they worshiped yet YOUR GOD probably hated their GOD in YOUR eyes.
The bible is fiction. And so is god.
Heathen Lady says
God told me not to listen to you.
First of all, that tinfoil sounds pretty itchy over your head. Second of all, did you just call special needs children abominations of God? Take a good, hard look in the mirror and realize you should not be a mother.
Mondexmomma seems to have her finger on the cultural pulse of Flagler County.