Education Law Attorney
Kennedy & Graven, Chartered
This summer, the United States Supreme Court issued a decision that has potentially significant ramifications in analyzing the appropriate boundaries of religious exercise by school employees while on duty. The First Amendment’s Establishment Clause prevents government entities, including school districts, from taking action that promotes the establishment of religion. This restriction at times creates tension with individual First Amendment rights regarding free speech and the free exercise of religion, particularly when addressing the religious expression of government employees while on duty.
That tension came to a head in Kennedy v. Bremerton School District, a case involving a football coach who had a regular practice of taking a knee at the 50-yard-line to pray following games. Initially, he prayed alone, but over time some players began asking if they could pray alongside him, which Kennedy allowed. Eventually, a majority of the team was joining him for prayer, as well as players from opposing teams, and Kennedy began incorporating motivational speeches with his prayers. At times, he also led pregame or postgame prayers in the locker room. Kennedy stated that he never pressured or encouraged any student to join in these prayers.
These practices continued without controversy for several years, until the District’s superintendent, concerned about potential Establishment Clause violations, sent Kennedy a letter instructing him to avoid motivational talks with students that included religious expression or prayer, and to avoid encouraging or supervising any prayer of students. Kennedy ceased the practice of offering locker-room prayers and incorporating religious references into motivational talks to the players, but requested that he continue to be allowed to offer a “post-game personal prayer” of thanks at midfield. The District, however, directed him to avoid from engaging in “any overt actions” that could “appear to a reasonable observer to endorse… prayer…while he is on duty as a District-paid coach.”
Subsequent to that directive, Kennedy offered a brief prayer after the next football game—most of the players on his team were occupied in the singing of the school fight song, but players from the other team and members of the community joined him. The District wrote to Kennedy again, explaining that it felt this could still be interpreted as school endorsement of religious activity, and directed him to pray after a game in a private location or engage in an interactive process to determine alternate accommodations. After the next game, Kennedy again knelt at the 50-yard line, though briefly, and bowed his head for a short prayer. The superintendent informed him that this “moved closer to what [the District] wanted” but was still likely unconstitutional. Following the final game at issue, Kennedy knelt again to offer a prayer, and was joined by other adults on the field. The District placed him on paid administrative leave and, after the season, gave him a poor performance evaluation based on his failure to follow District policy and failure to supervise student athletes after games. Kennedy chose not to seek renewal of his contract and sued for violation of his First Amendment rights. The district court and the Ninth Circuit Court of Appeals rejected his claims, finding that the District’s Establishment Clause concerns were legitimate and that the District’s actions were justified.
In a 6-3 decision authored by Justice Gorsuch, the Supreme Court analyzed the claim under both free exercise and free speech grounds and reversed the decision of the lower courts. When there is a claim that a governmental rule violates someone’s right to the free exercise of religion, a non-neutral policy that burdens a sincere religious practice must satisfy “strict scrutiny”—the rule must be justified by a compelling state interest and be narrowly tailored to pursue that interest. There was no dispute about the sincerity of Kennedy’s religious practice, and the policy was non-neutral because it singled out religious acts.
Under free speech grounds, a different test applies: when an employee speaks as a citizen addressing a matter of public concern, courts engage in a balancing test to determine whether the interest of the government in promoting the efficiency of public services outweigh the employee’s free speech rights. The Court held that this was private, non-governmental speech, because the prayers were not given within the scope of his duties as coach—coaches were free to engage in private speech during this postgame time, and the prayers at issue were not delivered as an address to the team. There was no dispute that the speech was related to a matter of public concern.
The Court then held that, under either the free exercise or free speech analysis, the District had not met its burden to justify its imposition on Kennedy’s free exercise rights. The Court fully dispensed with the endorsement test previously used in analyzing Establishment Clause claims (known as the “Lemon test”). In place of that test, the Court held that Establishment Clause must be interpreted by “reference to historical practices and understandings.” The Court held that the evidence in this case did not demonstrate coercion of students, at least among the three prayers actually at issue in the case—the prayers were not publicly broadcast or recited to a captive audience, and students were not required or expected to participate. Therefore, the Court held, because there was not a valid Establishment Clause concern, the District’s imposition on Kennedy’s speech and free exercise of religion violated his First Amendment rights.
The dissent from Justice Sotomayor, joined by justices Kagan and Breyer, criticized the majority for misconstruing the facts with respect to the degree to which Kennedy’s prayer was simply private and quiet. Notably, the record showed that Kennedy had “consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location.” There was evidence in the record of students feeling pressured to participate in the prayers, and the fact that Kennedy modified the prayers did not eliminate the context and history. The dissent also noted the significant disruption that Kennedy’s conduct had caused, in large part due to his own efforts in contacting media outlets, and criticized the “history and tradition” test as offering “essentially no guidance for school administrators.”
Following this decision, it is clear that public schools generally may not limit the private religious expression of employees on the job, at least during down-time when they do not have other specific duties and other private speech is permitted. But acts such as leading students in prayer, or using religious messaging as part of an official duty (such as a lesson or speech to a team), likely still create Establishment Clause concerns and can properly be prohibited. Evidence of coercion also may still be a problem, but this case suggests that the Court will take a narrow view of what constitutes coercion or government-endorsed speech. School districts should carefully keep these standards in mind when deciding whether and how to address employee religious speech.
This article is intended to provide general information with commentary. It should not be relied on as legal advice. If required, legal advice regarding this topic should be obtained from district legal counsel.
Adam Wattenbarger is an attorney and shareholder at Kennedy & Graven, Chartered, who practices education and employment law. For more information, please contact him at (612) 337-9306 or kennedy-graven.com.
© Adam C. Wattenbarger (2022). Used by permission.
