SCOTUS is set to decide whether a public school football coach can pray on the field

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Charles J. Russo, University of Dayton

(THE CONVERSATION) 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 games of soccer. Under the Equal Access Act, the Supreme Court affirmed that students can organize prayer and Bible study clubs outside of school hours. Even so, school staff and outside adults may not actively participate.

Lower courts have mostly barred public school teachers from openly praying in the workplace, even if students are not involved. Yet the Supreme Court has not directly considered such a case – until now.

Kennedy v. Bremerton School District, a Washington state case, scheduled for trial on April 25, 2022, could usher in more religious activity by teachers and other public school staff.

At issue is whether a school board violated the rights of Joseph Kennedy, a football coach it suspended and did not renew because he ignored its directive to stop kneeling in silent prayer on the pitch after games. Kennedy claims the council violated her First Amendment rights to free speech and freedom of religion, as well as her rights under the Civil Rights Act, which prohibits discrimination in employment.

The Supreme Court faces two key questions: whether the prayers that public school employees say in front of students are protected by their First Amendment rights; and, if they are, whether education officials should still ban them in order to avoid promoting particular religions and violating the Establishment Clause.

From my perspective as an education law scholar, the case is noteworthy because the court would have to resolve sensitive issues regarding whether public school employees can pray while supervising students, or if it crosses the line and becomes impermissible government speech.

Kennedy v. Bremerton also reflects the inherent tension between the First Amendment’s two religious freedom clauses: the free exercise clause protects the right of individuals to practice their religion as they choose, while the establishment clause prohibits the government from ” establish a religion.

In other words, a tension exists between the right of public employees to religious expression within the limits of the law and the needs of employers to avoid violating the Establishment Clause.

Facts of the case

In 2008, Kennedy, a self-described Christian, worked as the head coach of the junior varsity football team and assistant coach of the varsity team at Bremerton High School. He first knelt at the 50-yard line after games, regardless of the outcome, offering a brief, silent prayer of thanks.

While Kennedy initially prayed alone, most of his team’s players, and later members of opposing teams, joined him. He later added inspirational speeches, leading some parents and school employees to express concern that players would feel pressured to participate.

The school board ordered Kennedy to stop praying in the field because officials feared his actions put him at risk of violating the First Amendment. The government is prohibited from passing laws “respecting the establishment of religion or prohibiting the free exercise thereof” – often understood to mean that officials cannot promote a particular religion over another.

In September 2015, school board officials informed the coach that he could continue to give his inspirational speeches after games, but that they had to remain secular. Although the students could pray, he could not. Even so, a month later, Kennedy resumed his prayers. He had made his intention to do so public and was joined by players, coaches and parents, as reporters watched.

The Bremerton School Board offered accommodations to allow the coach to pray more privately, which he rejected. In late October, officials put him on paid leave for violating their directive and ultimately opted not to renew his one-year contract. He filed a complaint in August 2016.

Lower Court Rulings

The coach’s lawsuit raised two major claims, namely that the school board had violated his rights to freedom of speech and religion. However, the Ninth Circuit twice denied Kennedy’s claims, in 2017 and 2021, prompting 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 ground, finding that because he was a public employee, reasonable observers might have assumed his prayer had support. advice. In particular, the court held that he had acted as a public employee and not as a private citizen. The court explained that educators are free to display their faith at their own pace, such as when Kennedy sat in the stands as a fan during a game after his suspension.

With respect to Kennedy’s religious freedom claim, the court was satisfied that the school board’s restrictions on its activity followed a well-established principle: officials must demonstrate a compelling governmental interest before they can limit fundamental rights. of someone, such as freedom of religion, and the restrictions must be closely tailored to achieve that interest.

Here, the court accepted the council’s position that it had a compelling interest in avoiding breaching the Establishment Clause. In this decision, the court balanced the tension between the constitutional rights to religion and religion – the free exercise clause and the establishment clause, respectively.

The Ninth Circuit also denied the coach’s claims under Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on race, religion, sex or national origin. . The court also did not accept his claims that the board failed to accommodate him or that officials retaliated against him by not renewing his contract.

Decision to come

As part of its analysis, the Supreme Court is likely to consider whether the coach was at risk of sending the message that he was acting with school board approval, as a form of protected speech, or whether his prayers were unprotected private speech.

Also, the court can determine if Kennedy did not act as a role model, as is expected of educators. Courts have consistently agreed that school employees who work with students waive certain rights because of their position. For example, the Seventh Circuit asserted that an Indiana school board could fire a teacher who violated its policy by not remaining neutral about current events in the classroom.

As in Kennedy, boards can choose not to renew the contracts of employees who violate their policies. But so far, public employees at work who have ignored their employer’s legal policies have not been able to claim they were exercising their rights to freedom of religion or speech as a defense. It remains to be seen whether the court will recognize that educators cannot ignore legal directives at work, in order to avoid unduly influencing their students, or whether the judges will open the door to granting greater freedom of expression to teachers.

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As is often the case in high-profile litigation, the Supreme Court is expected to rule in late June or early July. While the case is unlikely to end disagreements over public employee prayer as a freedom of speech, in my view judges will likely walk a fine line in balancing the interests of educators who wish to pray at the labor and school boards seeking to avoid violating the Constitution.

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