The U.S. Supreme Court issued another high-profile, school-related decision yesterday. In Kennedy v. Bremerton School District, the Court found that the Bremerton School District violated Joseph Kennedy’s constitutional rights when it suspended him from his duties as the high school football coach for praying at mid-field after several football games. While several major media outlets are characterizing the decision as a pro-religion decision and an erosion of the separation between church and state based on a broader reporting of the facts involved in the case, a careful analysis of the decision suggests its immediate implications are more limited.
Although the practice of team prayer by Kennedy and his predecessor coaches was longstanding, the majority opinion focused solely on the conduct for which the District suspended Kennedy. The majority described that conduct as a “’giving thanks through prayer’ briefly by himself ‘on the playing field’ at the conclusion of each game he coaches.” The majority further relied upon the fact that Kennedy’s actions never bore any connection to his official duties as an employee of the District and occurred when Kennedy and others were free to engage in other non-school related duties such as checking sports scores or talking to friends. On these facts, the majority found that Kennedy’s actions were private speech rather than government speech. Accordingly, it concluded that the District had to treat his religious speech in the same manner as other, non-religious speech occurring at the same time.
Ultimately, the majority’s ruling suggests that the outcome might have been different if there had been evidence of coercion or involvement by members of the team. In this regard, school districts should be cautious when confronted with individuals claiming the decision allows football coaches or any employees to engage in religious practices, including team prayer, without limitation. Rather, the majority decision can reasonably be read as protecting individuals’ rights to engage in private religious speech on the same terms as private non-religious speech. Indeed, prior Court decisions have held that integrating prayer into public school activities is unconstitutional under many circumstances. The Court’s decision in Bremerton does not overturn its prior decisions.
The majority decision may indeed suggest a different approach to viewing religious rights cases in schools and certainly leaves open the question of how the Court may analyze future issues. For now, however, the Court’s decision may be read as protecting the right of an employee to engage in private prayer when not engaged in official work responsibilities and when not having a coercive effect on others, particularly students.
As First Amendment issues are inherently complex and fact-specific, school districts are well-advised to confer with counsel on any issues prior to taking action. Please contact any member of our Charter School Law Group if you have any questions about this legal update.
