[co-author: Jenny Lee]*
In 2019, we reported the matter of Kennedy v. Bremerton School District involving a Bremerton High School football coach in Washington state who was placed on administrative leave by his public school district for praying on the football field after games. At the time, the Supreme Court declined to hear the case when former assistant coach Joseph A. Kennedy appealed to the Court. However, in a concurring opinion signed by three other conservative judges, Judge Samuel Alito critical lower court opinions and suggested that the school district may have violated the coach’s First Amendment free speech rights. Although Alito agreed to decline the review due to “unresolved factual issues,” Alito’s rebuke underscored his willingness to re-examine the issue of public school employees and their free speech rights, including including religious discourse.
It turns out that the Supreme Court will have the possibility of reconsidering this question in the kennedy Case. On January 14, the justices agreed to consider Kennedy’s latest appeal, which re-circulated the 9th Circuit before ending up in the Supreme Court, this time with an even larger conservative majority. This case may have far-reaching implications for constitutional issues in education. The Court will examine an educator’s right to freedom of expression and the limits of that right, considering when an educator’s official duties begin and end and how to balance the right of an district as an employer to effectively carry out its educational mission. The Court will also consider an educator’s freedom of religion and right to religious accommodation, in conjunction with a district’s potentially conflicting duty not to promote or endorse religion in violation of the constitutional prohibition against establishment of a religion. If the Court rules in Kennedy’s favor, its ruling could narrow the scope of public schools’ ability to regulate teachers’ and coaches’ religious speech and expression.
Context of kennedy
To briefly recap, the case involves a lawsuit filed by Kennedy against the school district for violating his First Amendment and civil rights. Kennedy claimed that his Christian beliefs required him to kneel at the 50-yard line and offer a prayer of thanksgiving immediately after each game. Over the course of several years, Kennedy regularly invited students, coaches and members of the public to join him in prayer. The school district eventually informed Kennedy that he was only free to engage in private prayer if it was not demonstrative and did not interfere with his work duties. While Kennedy initially complied with the directive, he quickly contacted local media and made widely publicized appearances promising to resume prayer on the field.
After a homecoming game that involved members of the public jumping the fence to enter the field and pray with the coach, the school district sent Kennedy a letter explaining that his conduct violated district policy. The district offered to provide Kennedy with a private place on campus to pray and invited him to offer his own suggestions for a compromise. Instead of responding to the district, Kennedy and his attorneys informed the media that the only acceptable outcome was for the school district to allow him to pray at the 50-yard line after games.
After Kennedy continued to perform postgame prayers, the school district placed Kennedy on paid administrative leave. Kennedy sued the school district, claiming that his rights had been violated under the First Amendment and the Civil Rights Act of 1964. Kennedy asked the trial court to order the school district to reinstate and release him. allow him to pray as he wished. The trial court denied his request and a panel of 9th Circuit Court of Appeals judges upheld. Kennedy appealed to the Supreme Court, which denied his petition, albeit with Judge Alito’s vexed concurring opinion.
When the case returned to the lower courts, the district court ruled that the school district was justified in restricting Kennedy’s prayer activities to avoid violating the Establishment Clause of the Constitution, which prohibits the government from promote a religion. After review, the 9th Circuit Court of Appeals panel again ruled against Kennedy, leading to Kennedy’s second appeal to the Supreme Court.
Kennedy’s second call
In September 2021, Kennedy filed another motion for certiorari with the Supreme Court, arguing that the 9th Circuit wrongly converted “anything public school teachers do or say during school hours or after school hours into government speech that the school can ban”. Kennedy argued that his “brief and silent prayer” was merely a private speech and that the school district would not have violated the Establishment Clause by allowing him to engage in such prayer on the field after games. Kennedy urged the Supreme Court to affirm that the First Amendment “does not require schools to purge from the public sphere anything that in any way partakes of religion.”
The school district responded in turn that Kennedy had misrepresented the facts in his petition. The case was not about the hypothetical question of whether an employee has the right to a “brief silent prayer by himself while at school”. Instead, the district argued:
This case concerns the power of a school district to protect students when its employee does not work with it to find a reasonable accommodation… The district therefore faced a stark choice: either let its employee dictate the course of school events, even if it threatens the security and religious freedom of students or take the necessary measures to curb this practice.
The school district warned the Supreme Court that a ruling for Kennedy “would overturn decades of law established under the free speech and establishment clauses.”
What to look for in the Supreme Court decision
As we noted earlier, Justice Alito’s 2019 opinion suggested that if these issues were again before the Court, the Supreme Court would likely apply a much broader interpretation of the First Amendment than the 9th Circuit. Judge Alito was troubled that the 9th Circuit believed that “public school teachers and coaches can be fired if they engage in expression the school does not like while on duty” , “on duty” meaning “all the time from the time they report for work until the time they leave, provided they are in view of the students. Justice Alito said he was most concerned with the idea that a coach’s duty to be a role model “commits the coach to abstain from any manifestation of religious faith, even when the coach is obviously not not in use”.
With these problems back in play in Kennedy vs. Bremerton, the Supreme Court is set to grapple with fundamental First Amendment issues of freedom of speech, free exercise of religion, and the establishment of religion. We will keep you informed of the main developments in this case.
*Third-year law student at Loyola University Chicago School of Law, currently law clerk at Franczek PC