Thought Leadership

Supreme Court to Consider Employee Prayer in Public Schools

On January 14, 2022, the Supreme Court announced it will hear a case that will define the contours of when public school employees can pray at school and school-related activities. Kennedy v. Bremerton School District involves Joseph Kennedy, a former public high school football coach for the Bremerton Knights in suburban Seattle. In the case, Kennedy challenges his former employer’s decision to place him on administrative leave when he refused to refrain from postgame prayers with students on the 50-yard line while fans remained in the stand.

The Supreme Court declined to review the case at an earlier stage, saying it needed more facts to decide if the prayers were within the coach’s First Amendment rights. Now, lower courts have addressed the facts, and the Supreme Court has agreed to review the decisions. Based on the Court’s current composition and previous statements by certain Justices on the school’s decision, a ruling in favor of the coach could be ahead. If it does, schools will be significantly more limited in the ability to control employee prayer at school events, even if the prayer creates a risk that members of the public will believe the prayer is school-sanctioned.

According to Kennedy, immediately after each football game, he “felt called to kneel at the 50-yard line and offer a brief, quiet prayer of thanksgiving for player safety, sportsmanship, and spirited competition.” Over time, Kennedy’s prayer sessions included most of the football team. As one court explained it:

He led the team in prayer in the locker room before each game, and some players began to join him for his postgame prayer, too, where his practice ultimately evolved to include full-blown religious speeches to, and prayers with, players from both teams after the game, conducted while the players were still on the field and while fans remained in the stands.

According to the high school principal, an atheist football player reported that he felt obligated to pray with Kennedy or receive less playing time. The school was worried that the prayers would violate the First Amendment’s Establishment Clause, which requires what is commonly referred to as the separation of church and state. The district’s Superintendent directed Kennedy to refrain from any religious activity that would alienate any student. The Superintendent emphasized that Kennedy was “free to engage in religious activity, including prayer, so long as it does not interfere with job responsibilities. Such activity must be physically separate from any student activity, and students may not be allowed to join such activity. In order to avoid the perception of endorsement discussed above, such activity should either be non-demonstrative (i.e., not outwardly discernible as religious activity) if students are also engaged in religious conduct, or it should occur while students are not engaging in such conduct.”

Kennedy refused to follow the district’s directives and, after being placed on administrative leave in the fall of 2015, filed a lawsuit. His suit alleges violations of his First Amendment rights to free speech and free exercise. It also contains a claim under Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on religion.

In 2017, the Ninth Circuit Court of Appeals, the highest court with jurisdiction over the case other than the Supreme Court, affirmed a lower court’s rejection of Kennedy’s request that the court enjoin the administrative leave while the case worked its way through the courts. Such a decision rests partly on the conclusion that the party seeking the injunction is likely to succeed on the merits, suggesting that the lower courts thought the school was within its right to put Kennedy on leave.

The Supreme Court opted not to review the preliminary injunction decision. However, Justices Alito, Thomas, Kavanaugh, and Gorsuch took the extraordinary step of issuing a statement along with the Court’s denial of review. In it, they said that the Court did not necessarily agree with the outcome of the Ninth Circuit’s decision. However, there were too many unresolved factual questions to determine the First Amendment issue. The justices noted that the decision was “most troubling” in that it implied “a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith—even when the coach is plainly not on duty.”

The matter returned to the trial court, which granted a request for summary judgment before trial from the school district. It held the school’s actions were justified because the only reason Kennedy was suspended was that his conduct created a potential violation of the Establishment Clause. The Ninth Circuit agreed in a second opinion in March 2021. Because Kennedy’s expression on the field—a location that he only had access to because of his employment—when he was generally tasked with communicating with students, his speech was as a public employee. The Ninth Circuit also agreed with the trial court that the school reasonably placed Kennedy on leave because of a concern that not doing so would be seen as support for religion. The Ninth Circuit explained that the school responded to “the risk that Kennedy’s on-field religious activity, coupled with his pugilistic efforts to generate publicity in order to gain approval of those on-field religious activities, would [lead the public to] view BSD’s allowance of that activity as ‘stamped with [his or] her school’s seal of approval.’” Accordingly, the Ninth Circuit denied Kennedy’s First Amendment and Title VII claims.

This time, the Supreme Court agreed to hear Kennedy’s appeal. By taking this case, the Supreme Court will provide guidance to school officials on limits to employee free speech in the school environment. To do so, it will balance that right against the requirement that schools not endorse or coerce students to participate in prayer at school.