Kennedy v. Bremerton School District
(U.S. June 27, 2022)
For anyone who has attended any of our presentations or in-service training over the last few years on staff speech issues, you have no doubt heard about the legal saga of the “praying football coach” as his claims have made their way up, then down, and now back up again through the federal courts. As promised, we have kept close tabs on what the U.S. Supreme Court ultimately had to say about Coach Kennedy’s case, which it did on June 27, 2022.
In an opinion authored by Justice Gorsuch for a 6-3 majority, the Supreme Court held that Bremerton (Wash.) School District violated Kennedy’s First Amendment rights when it terminated him for engaging in what the Court characterized as kneeling at midfield after football games to offer a quiet prayer of thanks “while his students were otherwise occupied.”
“The Facts.” We cannot overstate the importance of the majority’s view of the relevant facts on the outcome of the case. The Court concluded that the school district disciplined Kennedy “only for his decision to persist in praying quietly without his players after three games in October 2015.”
In other words, the facts relevant to the Court did NOT include a coach circling up his players to lead them in prayer or giving religiously-inspirational talks to the entire team (although there was some evidence of Kennedy engaging in similar practices in the past prior to what the majority viewed as the relevant events). Thus, while we anticipate that many headlines that you will see will wrongly (in our opinion) imply that any coach can pray with his or her players at any time, that’s not really what the Supreme Court concluded. Instead, it held that a school district cannot preclude a coach from saying a quiet, private prayer to himself when he is away from his players and otherwise able to do other personal things (like send a text or make a personal phone call) despite such prayers occurring on the 50-yard line of a football field after a game.
Establishment Clause Insufficient to Protect the School District. The school district’s grounds for precluding Kennedy from praying at midfield immediately after the game were based on what the district understood to be required by the Establishment Clause of the First Amendment (“Congress shall make no law respecting an establishment of religion . . . .”), based on the Supreme Court’s earlier precedent. In this case, the Kennedy Court explicitly overruled at least some of that precedent and concluded that a quiet, private prayer by a coach that did not involve students did not risk offending the Establishment Clause. In light of the fact that the school district’s rules limiting Kennedy’s prayer were NOT neutral and generally applicable—in that they were specifically based, at least in part, on the religious character of Kennedy’s actions—then the school district’s actions were subject to the highest constitutional scrutiny, which they failed to survive. As a result, the Court held that the school district violated Kennedy’s free exercise rights.
Freedom of Speech Claims Still Subject to Pickering-Garcetti. In considering Kennedy’s free speech claim, the Court applied the Pickering-Garcetti test (that you have likely heard from us before) and concluded that Kennedy’s speech was private speech (not government speech) that was thus entitled to First Amendment protection. The Court made clear that broad job descriptions or vague claims that an employee is “on duty,” by themselves, will not render a school employee’s actions as falling within the employee’s official duties when the school district permits school employees (during the same timeframe) to speak with a friend, call for restaurant reservations, check personal email, or attend to other personal matters. In other words, school districts cannot claim that an employee is engaged in “official duties” as a basis to prevent that employee from exercising speech rights, while allowing other school employees to engage in private, personal actions in similar circumstances. Basically, if coaches can make a personal phone call from the field as players mill about (such as to a spouse), you can’t say that’s acceptable but prayer is not.
As you can imagine, we’ll have more to say (LOTS!) when we present on this case and similar staff speech issues. If between now and then you have any questions about this case or other First Amendment issues, please contact Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at ksb@ksbschoollaw.com or (402) 804-8000.