The conservative majority on the U.S. Supreme Court on Monday appeared receptive to arguments that a high school football coach’s postgame prayers on the 50-yard line were private religious expression protected by the First Amendment.
In a sober but wide-ranging argument that ran 108 minutes, the justices and advocates debated coaches taking a knee against racism or flying a Ukrainian flag to oppose the Russian invasion, as well as teachers reading a Bible or saying a silent, or audible, prayer before the start of class. The case of Kennedy v. Bremerton School District (No. 21-418) could reshape constitutional law on prayers in public schools but also have implications for the debate over restricting what educators may say about topics such as race and gender identity.
The lawyer representing Joseph A. Kennedy, the football coach who was effectively dismissed from the Bremerton, Wash., school district in 2015 when he continued his postgame prayers despite efforts by school administrators to coax him into praying in a less-conspicuous location, urged the justices to clarify that school districts are not endorsing religion when they permit private religious expression.
“What continues to happen [nationally] is that there is overt discrimination on the basis of religion, as is evidenced in the record here, by school districts who aren’t evil,” said Paul D. Clement. “It’s just they’re doing it out of misguided endorsement concerns.”
Justice Clarence Thomas cast doubt on one of the school district’s main arguments, which is that Kennedy’s expression was made as part of his job duties and thus the district could regulate his speech under a 2006 high court decision, Garcetti v. Ceballos.
“So, where does Garcetti fit in?” Thomas asked Clement. “We know [the prayer is] not a part of his job, especially since the school district didn’t know anything about it initially and it objected to it. So it can’t be a part of his job.”
“That’s music to my ears, Justice Thomas,” Clement said. “We’re saying this isn’t part of his job, so it’s private speech,” and therefore subject to the highest level of constitutional scrutiny, Clement added. “But we’d also say, because it’s not part of his job, it’s private religious activity that’s protected by the free exercise clause.”
Richard B. Katskee, the legal director of Americans United for Separation of Church and State, argued on behalf of the Bremerton district that no one disputed that public school employees may have quiet prayers, even where students may see them.
“But that wasn’t good enough for Mr. Kennedy,” Katskee said. “He insisted on audible prayers at the 50-yard line with students. He announced in the press that those prayers are how he helps these kids be better people. … Some of these kids were just 14 years old. Mr. Kennedy’s actions pressured them to pray and also divided the coaching staff, sparked vitriol against school officials, and led to the field being stormed and students getting knocked down.”
The justices pose hypotheticals about other prayers in school
Katskee was referring to the Bremerton High homecoming game on Oct. 16, 2015, a focal point of a complicated series of communications that autumn between the district, Kennedy, and the lawyers on both sides.
Kennedy, the part-time assistant varsity coach and head junior varsity coach, had prayed without incident for several years, but the school district sought to rein in his postgame prayers. When Kennedy sued to be able to continue kneeling down for prayer at the 50-yard line, lower courts repeatedly ruled for the school district under both Garcetti and the idea that the district might have violated the First Amendment’s prohibition against government establishment of religion if it permitted the coach’s prayers.
Justice Samuel A. Alito Jr. told Katskee at one point to “forget all the complicated facts of this case” and think about a hypothetical in which the high school coach has no specific job responsibilities after the game and goes to the 50-yard line to pray.
“He doesn’t invite anybody to go with him, but he also doesn’t tell people who are also permitted on the field to go away,” Alito said. And all of this is visible to people in the stands. … Can he be fired for engaging in those activities? “
Katskee said that would not likely be government speech, so then a court would have to apply another Supreme Court precedent on public employee speech, Pickering v. Board of Education of Township High School District 205. That 1968 decision held that a teacher’s speech on a matter of public concern is protected under the First Amendment if it outweighs the employer’s interests in workplace efficiency and lack of disruption.
Alito noted that Kennedy also has a free exercise of religion claim in his case, and he asked about a school district that allowed a coach to wave a flag of Ukraine, or make a statement about climate change or racial injustice, but not to pray.
Katskee said the school district does not have an interest in discriminating against religious speech, but the district “gets to script its event.”
Thomas asked, “if the coach, instead of taking a knee for prayer, took a knee during the National Anthem because of moral opposition to racism, how would your school district respond? … Would that be government speech?”
Katskee said it would be if the coach went to the center of the field and essentially seized the school district’s program as his own.
Justice Amy Coney Barrett asked Clement whether a school district might prevail under Pickering over a coach who “says the Our Father with arms outstretched and it starts causing a lot of havoc in the stands.”
Clement said that if “the hypothetical is that kind of audible prayer, you do have the argument at least that that would be instructional and might be a different case” than Kennedy’s.
The court’s more liberal members appeared to be concerned about the scope of a ruling in favor of the coach.
Questions on teachers praying in the classroom and coercion of students
Justice Sonia Sotomayor discussed a teacher who prays silently or audibly at the beginning of class, or when the bell rings and students are trying to ask her questions about classwork.
“She’s on duty,” Sotomayor said. “She’s on duty in the classroom. And the duty is not from the beginning of the bell to the end of the bell. The duty is while she’s in the classroom. So why can’t an employer tell an employee what they’re permitted to do, personal or otherwise, during that time?”
Justice Elena Kagan said that “if you look at our prayer cases, the idea of why the school can discipline [the coach] is that that puts a kind of undue pressure, a kind of coercion on students to participate in religious activities when they may not wish to, when their religion is different, or when they have no religion.”
Clement said the record in the case suggests the Bremerton school district took action more out of concern that it would be perceived as endorsing religion than because any students were being coerced to participate in the coach’s prayers.
Kagan said, “Yeah, I mean, endorsement, coercion, ... you’re requiring a lot of a school board to try to figure out exactly which box in the establishment clause to put this in.”
Clement replied, “With all due respect, I don’t think it’s asking that much for a school district to understand what this court has said repeatedly” about the Constitution’s commands regarding religious expression.
Kennedy, who now lives in Florida but vows to return to Bremerton if he is reinstated in his job, was outside the court after the arguments, dressed in a Bremerton Knights coach’s polo shirt. (Because the courtroom is still closed to the general public, he had to listen to the livestream of the audio elsewhere before joining his lawyers on the court’s plaza.)
A decision in the case is expected by late June.
