• Miyares and Harrington, LLP

Supreme Court Establishes a New Standard for Religious Expression in Schools

On June 27, 2022, the Supreme Court held that a school violated its football coach’s First Amendment rights when it suspended and then elected not to renew the coach’s contract after the coach visibly engaged in post-game, on-field, prayers with students. The decision, Kennedy v. Bremerton School District, has considerable implications for school administrators and religious expression in schools.

Joseph Kennedy was a football coach in Bremerton, WA, who had established a post-game habit of praying at the 50-yard line on the school football field. While this practice began as a solo and quiet endeavor, over time, students joined him while he prayed. Eventually, Kennedy and the school district disagreed over the appropriateness of the prayer ritual. Kennedy insisted that the prayer was private and personal; however, the record established during the court proceedings indicates that it evolved into religious-infused motivational speeches where students would surround him and often kneel in prayer.

In 2015, the school district told Kennedy to stop the post-game prayers because it violated the establishment clause of the First Amendment, which prohibits state sponsoring or endorsement of religion. Kennedy refused to comply, and the district placed him on paid administrative leave and ultimately did not renew his contract. Kennedy sued the school district for violating his First Amendment right to free speech and free exercise of religion. The district court and appeals court ruled in favor of the school district; the Supreme Court, however, ruled in favor of Kennedy.

The Supreme Court held that:

  • Kennedy’s prayer ritual did not violate the establishment clause of the First Amendment because the prayers could not reasonably be construed as religious endorsement and he did not coerce student participation; and

  • The school district violated Kennedy’s right to free exercise of religion and free speech because the prayers constituted private speech.

The Court held that the prayers were indeed private because students were not required to participate, it was not done in his workplace capacity as football coach (but rather after the game), and Kennedy had testified that he would pray even in the absence of student participation. Justice Gorsuch, who wrote the majority opinion, noted that the coach engaged in a “brief, quiet, personal religious observance.” The dissenting justices disagreed and accused the majority of misconstruing the facts and ignoring that the ritual had made some students feel peer pressure to join the prayers.

This opinion deviates from three decades of Supreme Court precedent, which had used a balancing test to decide Establishment clause cases. Instead, the majority created an analysis based on “original meaning and history” and “references to historical practices and understanding.” There is very little guidance on what this analysis practically requires. However, based on this opinion, it seems that “private,” non-mandatory religious activity that is conducted outside the scope of the employee’s job duties—even if on school grounds and even if visible—is constitutionally protected.



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