The Supreme Court of the United States has consistently prohibited school-sponsored prayer in public schools. Simultaneously, lower courts have generally prohibited public school employees from openly praying in the workplace, even when no students are present.
Nonetheless, on June 27, 2022, the Supreme Court effectively approved of individual employees’ prayer, potentially ushering in more religious activities in public schools.
In Kennedy v. Bremerton School District, the Supreme Court ruled that a school board in Washington state violated a coach’s rights by refusing to renew his contract after he ignored district officials’ directive to stop kneeling in silent prayer on the field’s 50-yard line after games. He claimed that the board infringed on his First Amendment rights to free speech and religious freedom, and the Supreme Court majority agreed, 6-3. According to court documents filed on October 25, 2022, the coach will be reinstated by March 2023.
As an education law specialist, I find the case noteworthy because the court has now ruled that public school employees can pray while supervising students. It also helps to end a Supreme Court term in which the current justices’ growing interest in religious discrimination claims was on full display, with another “church-state” case decided in favor of religious plaintiffs just last week. On June 24, 2022, the Supreme Court overturned Roe v. Wade. The abortion debate is frequently framed in terms of religion, despite the fact that the court’s decision was based on other constitutional grounds.
Kennedy, a devout Christian, was head coach of the junior varsity football team and assistant coach of the varsity team at Bremerton High School in 2008. Regardless of the outcome, he began to kneel on the 50-yard line after games, offering a brief, quiet prayer of thanks.
While Kennedy initially prayed alone, the majority of his team’s players, as well as members of opposing squads, eventually joined in. He later added motivational speeches, prompting some parents and school employees to express concern that players would feel obligated to participate.
School officials told Kennedy to stop praying on the field because they were concerned that his actions would put the school board in violation of the First Amendment. The government is prohibited from passing laws “respecting an establishment of religion or prohibiting the free exercise thereof” – language known as the establishment clause, which is commonly interpreted to mean that public officials cannot favor one faith over another.
School officials informed the coach in September 2015 that he could continue to deliver inspirational speeches after games, but they had to be secular. Students could pray, but he couldn’t. Nonetheless, Kennedy resumed his on-field prayers a month later. He had announced his intention to do so and was joined by players, coaches, and parents as reporters looked on.
Bremerton’s school board offered Kennedy accommodations to allow him to pray more privately on the field after the stadium had been cleared, but he declined. Officials placed him on paid leave at the end of October for violating their directive and ultimately decided not to renew his one-year contract. Kennedy filed his lawsuit in August of 2016.
Kennedy made two major claims: that the school board violated his rights to free speech and to practice his religion freely. However, the Ninth Circuit dismissed these claims twice because it determined that when he prayed, he did so as a public employee whose actions could have been interpreted as having the board’s approval. Furthermore, the Ninth Circuit agreed with the school board that the district had a compelling interest in avoiding establishment clause violations.
However, it was clear during oral arguments at the Supreme Court that the majority of justices were sympathetic to Kennedy’s claims of religious discrimination and were more concerned with his rights to religious freedom than the board’s concern about violating the establishment clause.
In his dissenting opinion, Justice Neil Gorsuch stated that “a proper understanding of the Establishment Clause of the First Amendment does not require the government to single out private religious speech for special disfavor.” For religious and nonreligious views alike, the Constitution and the best of our traditions advocate mutual respect and tolerance, not censorship and suppression.”
One aspect of Kennedy with potentially far-reaching consequences is that it largely repudiates the three major tests the court has long applied in cases involving religion.
