Posted on July 19, 2022
Important takeaways: Bremerton School District asked their football coach not to pray at half-field because the school did not want it to appear as though they were endorsing any religion and therefore violating the Establishment Clause of the First Amendment to the United States Constitution. Coach Joseph Kennedy then sued the school district alleging his First Amendment Free Speech protections were violated. The Supreme Court determined the prayer after the game was not the coach acting within his official duties as a coach and the interest in preventing a possible Establishment Clause violation does not outweigh the coach’s right to free speech. Not allowing Coach Kennedy to pray on the field and dismissing him for doing so violated the First Amendment.
Facts: Football coach Joseph Kennedy was suspended from his position as a high school football coach after he knelt at midfield after a game finished to offer a prayer of thanks. The student football players were otherwise occupied and were not asked to join in the prayer. Student players eventually asked if they could join Coach Kennedy. Along with the prayer on the field after the games, the team would also engage in pre-game and post-game prayers, which was a school tradition. Coach Kennedy never told students they were required to join him or participate in any religious activity. These prayers were not an issue until 2015 when the practices were brought to the attention of the school superintendent.
After being notified, the superintendent sent Coach Kennedy a letter telling him to avoid any motivational talks with students that included religious expression, including prayer, and to avoid encouraging, discouraging, or supervising student prayers, which students remained free to engage in. The letter also said any religious activity on Coach Kennedy’s part could not be outwardly discernible as a religious activity if students were also engaged in the conduct. This was so the school could avoid the perception of endorsement of any religion, so as to not violate the Establishment Clause.
Following this initial letter, after a game, Coach Kennedy came back to the field after everyone left to offer his own prayer. Kennedy wrote a letter to the school through his attorney in October 2015 asking to continue the post-game prayer. The school district responded and said he could not engage in any activity that would appear to a reasonable observer to endorse prayer while he is on duty as a District-paid coach, so as to not violate the Establishment Clause. After receiving this response, Coach Kennedy did the prayer that evening at the football game. The school district then said a reasonable observer could take that prayer as an endorsement and they would offer him a private location not observable to students or the public to engage in prayer. Coach Kennedy continued to pray on the field after football games and was put on paid administrative leave.
Coach Kennedy filed a lawsuit alleging his First Amendment right to Free Speech had been violated. On appeal, the 9th Circuit Court of Appeals found that the speech was in Coach Kennedy’s official capacity as a government employee and therefore his speech was not protected by the First Amendment, the Supreme Court reversed this decision. The Supreme Court found the prayer at midfield at the end of every game was not within Coach Kennedy’s official capacity as a government employee. They reached this conclusion using a test previously established by the Court called the Pickering-Garcetti framework. This framework asks if the speech was pursuant to the individual’s duties as a government employee and then balances the interests of the speech and its consequences. The Court explained that the prayer was given during a time when the other coaches were free to attend to personal matters, therefore not during a time when Coach Kennedy was acting in his official capacity as a government employee. The school district also failed to show that its actions in asking Coach Kennedy not to pray after a game on the football field were not essential to avoiding an Establishment Clause violation. The Court explained that there is not an automatic violation of the Establishment Clause if a public school fails to censor private religious speech. Violations of the Establishment Clause are tested under a historical practices and understandings test. The Court explained that secondary school students are mature enough to understand that allowing a teacher to participate in a religious activity does not mean the school endorses a religion. They held since Mr. Kennedy had not coerced the students into participating in the prayer, this case is different from cases where prayer at a school-sanctioned event was not allowed. Overall, since the speech was private speech the school district’s interest in avoiding a possible Establishment Clause violation did not outweigh Mr. Kennedy’s interest in Free Speech, Coach Kenney’s right to Free Speech was violated when he was put on leave for continuing to pray on the football field.
What this means: The test to determine whether a government employee’s speech is protected by the First Amendment remains the same. This test first requires a determination as to whether the speech was within the employee’s official capacity as a government employee. The second step of the test is to determine if the right to the speech at issue outweighs the school’s interest in restricting the speech. In this case, If the interest is only to avoid a possible violation of the Establishment Clause, this will not be enough.
What is the name of the case and where can you read it: Kennedy v. Bremerton Sch. Dist., Supreme Court, June 27, 2022. Read it here
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Megan, Beth, and Kevin by email or at 406-542-1300 to discuss these issues.