By Karissa Grapes*

Background

On June 27, 2022, the Supreme Court ruled that a public school football coach possesses a right to pray with his players after games.^[1] This decision significantly complicates what religious activities are allowed in schools and when schools can regulate employee expression. The decision erodes the separation of church and state in public schools.

Factual and Procedural History

In this case, Petitioner Joseph Kennedy lost his job as a high school football coach.^[2] The termination followed after he knelt at midfield after football games to offer a personal prayer.^[3] Initially, he prayed on his own.^[4] Over a period of time, some players asked to join him.^[5] Petitioner responded with, “This is a free country. You can do what you want.”^[6] This practice eventually grew to most of the team, and even members from opposing teams joined.^[7] The district sent directives to stop engaging in religious expression, which petitioner ignored.^[8]

Petitioner sued in federal court alleging the school district’s action violated his free-speech and free-exercise rights.^[9] The district court concluded “that a reasonable observer… would have seen him as… leading an orchestrated session of faith.”^[10] Petitioner appealed, and the Ninth Circuit affirmed.^[11] Petitioner sought certiorari, which was denied but accompanied by a statement stressing that a denial does not necessarily mean the Supreme Court agrees with the decision below.^[12] The case returned to the district court; the court rejected Petitioner’s free speech claim, and it found the school district had a compelling interest in prohibiting his post-game prayers, thus rejecting his free exercise claim.^[13] The Ninth Circuit affirmed.^[14] The Supreme Court granted certiorari.^[15]

Holding

The Court examined the following question: “Is a public-school employee’s prayer during school sports activities protected speech, and if so, can the public school employer prohibit it to avoid violating the Establishment Clause?”^[16] The Court held that the Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.^[17]

Disregard for Judicial Precedent

The Supreme Court erred in its decision. First, the majority did not decide the case on the three-part Lemon test as it has historically done since 1971.^[18] In Lemon v. Kurtzman, two states had passed laws which allowed tax-funded reimbursements to church-affiliated schools.^[19] In hearing the case, the Supreme Court decided that the aid to these schools violated the first amendment. The Court considered three factors: (1) the secular purpose doctrine,^[20] (2) the principal or primary effects doctrine,^[21] and (3) the excessive entanglement test.^[22] These factors became known as the Lemon test, which, as the factors indicate, examines the law’s purposes and its entanglement with religion.^[23] The inquiry under Lemon was whether a reasonable observer would see the challenged governmental action as an endorsement of the religion.^[24] In Kennedy, Justice Gorsuch opined that the courts should determine whether a law or practice violates the Establishment Clause by looking at the “historical practices and understandings” of the drafters of the Constitution.^[25] This new test has little practical guidance to schools until lower courts apply the holding.

As the dissent explains, Justice Gorsuch misconstrued the facts.^[26] The question before the court was “whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event.”^[27] The answer is clearly no. Teachers and coaches possessing broad free exercise and free speech rights cannot be reconciled with the Establishment Clause requirements of the school.^[28]

Further, the government must remain neutral about religion due to how susceptible to influence children are. Looking at these facts in particular, students are susceptible to feel compelled to join in the post-game prayer.^[29] Students may feel obligated to join their coach—a person in power—in addition to teammates. There is a pressure to pray. As one parent put it, “The coach is a leader. The coach is a mentor. If he goes to the 50-yard line, he has a message he wants to deliver, and so the players would follow.”^[30] While we cannot enter Coach Kennedy’s mind, the prayer may result in favoritism amongst those who are religious and engaging in the prayer compared to their non-religious and non-praying teammates. Coach Kennedy’s actions harm students with practicing minority faiths or those who have no faith. The First Amendment specifically protects individuals from the pressure of engaging in a practice they do not agree with.

Conclusion

For the time being, it is unclear what religious activities schools can regulate. The holding suggests that teachers and other school employees have broader freedoms in expressing their personal views at work. Schools will have to tread lightly and consider specific factors when deciding whether or not to restrict—such as behavior that occurs outside the classroom, outside working hours, and/or “non-student-facing settings.”^[31]

[1] Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022).

[2] Id. at 2415.

[3] Id. at 2416.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 2416–19.

[9] Id. at 2419.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at 2420.

[14] Id.

[15] Id. at 2421.

[16] Kennedy v. Bremerton School District, Oyez, https://www.oyez.org/cases/2021/21-418 (last visited Oct 16, 2022).

[17] Kennedy, 142 S. Ct. at 2421–33.

[18] Lemon v. Kurtzman, 91 S. Ct. 2105 (1971).

[19] Geoffrey McGovern, Lemon v. Kurtzman I (1971), First Amendment Encyclopedia, https://www.mtsu.edu/first-amendment/article/437/lemon-v-kurtzman-i#:~:text=Kurtzman%2C%20403%20U.S.%20602%20(1971,church%2Drelated%20educational%20institutions.%E2%80%9D (last visited Nov. 17, 2022).

[20] Sch. Dist. Abington Twp. v. Schempp, 83 S. Ct. 1560 (1963).

[21] Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen, 88 S. Ct. 1923 (1968).

[22] Walz v. Tax Comm’n of New York, 90 S. Ct. 1409 (1970).

[23] Id. at 2112.

[24] Cnty. of Allegheny v. ACLU, 109 S. Ct. 3086, 3121 (1989).

[25] Kennedy, 142 S. Ct. at 2428.

[26] Kennedy, 142 S. Ct.. at 2434 (Sotomayor, J., dissenting).

[27] Id. at 2441.

[28] Ira Lupu & Robert Tuttle, Kennedy v. Bremerton School District – A Sledgehammer to the Bedrock of Nonestablishment, American Constitution Society (June 28, 2022), https://www.acslaw.org/expertforum/kennedy-v-bremerton-school-district-a-sledgehammer-to-the-bedrock-of-nonestablishment/.

[29] Amy Howe, Justices Side with High School Football Coach Who Prayed on the Field with Students, SCOTUSblog (June 27, 2022, 11:24 AM), https://www.scotusblog.com/2022/06/justices-side-with-high-school-football-coach-who-prayed-on-the-field-with-students/.

[30] Devin Dwyer, Supreme Court Rules First Amendment Protects Public School Coach’s Post-Game Prayers, ABC 7 News (June 27, 2022), https://abc7news.com/high-school-football-coach-prayer-supreme-court-decision-joe-kennedy-first-amendment/11998307/#:~:text=The%20First%20Amendment%20protects%20free,if%20the%20prayer%20is%20voluntary.

[31] Kirsten White, Clear as Mud: Navigating In-Schhol Employee Expression in the Wake of Kennedy v. Bremerton School District, Fox Rothschild LLP (July 15, 2022), https://www.foxrothschild.com/publications/clear-as-mud-navigating-in-school-employee-expression-in-the-wake-of-kennedy-v-bremerton-school-district.

* Karissa Grapes, Note & Comment Editor and J.D. Candidate, UMN Law School Class of 2023