Supreme Court Finds District Could Not Restrict Coach’s Private Prayer at 50-Yard Line
On June 27, 2022, the U.S. Supreme Court ruled 6-3 to overturn the Ninth Circuit Court of Appeals’ decision in Kennedy v. Bremerton School District, finding that the Free Exercise and Free Speech Clauses of the First Amendment protected high school football coach Joseph Kennedy’s ability to pray at the 50-yard line immediately after football games, and that the Constitution neither mandates nor permits the school district to stop such religious expression.
As AALRR wrote after the Ninth Circuit’s decision in 2021, Kennedy was employed by the Bremerton School District (“BSD”) as a high school football coach from 2008 until 2015. Kennedy was a practicing Christian, and began engaging in silent prayer at the conclusion of each game during his first coaching season in 2008. His religious conduct was observed by students, parents, and community members. During his coaching tenure, students, coaches, and parents from BSD and opposing teams began joining him in prayer at the 50-yard line after each game. Kennedy’s conduct evolved from his personal silent prayer into prayer speeches with religious content.
In September 2015, BSD Superintendent issued Kennedy a letter reminding him of BSD’s Board Policy and directing him to separate his religious conduct from student activity to avoid the perception that such religious activity was endorsed by BSD or required to participate in the program.
Kennedy briefly complied with the District’s directive; however, on October 14, 2015, Kennedy informed the District that he would resume his end of game prayers. Kennedy’s decision to resume his prayers was widely publicized through various forms of media after he solicited support from the community. At the conclusion of the October 16, 2015 football game, Kennedy was joined by students, coaches, parents, and other attendees who disregarded BSD’s demand to stay off the field so that they could support Kennedy.
On October 23, 2015, BSD sent Kennedy a letter stating that he violated the District’s Board Policy. BSD was willing to provide accommodations for his religious conduct that would not be perceived as a District endorsement. Kennedy rejected all accommodation options and continued to engage in end of game prayers. BSD placed Kennedy on administrative leave and he was not rehired following the expiration of his yearly employment contract.
In August 2016, Kennedy filed suit, asserting his rights were violated under the First Amendment and Title VII of the Civil Rights Act of 1964. The district court denied an injunction to reinstate Kennedy as a coach and to allow him to pray on the field immediately after each game. In 2019, the Supreme Court refused to hear Kennedy’s appeal. Both Kennedy and BSD sought summary judgment from a federal district court and the court ruled in favor of BSD. Kennedy appealed to the Ninth Circuit, which again held in favor of BSD, finding that Kennedy spoke as a public employee when he engaged in religious conduct. The Ninth Circuit distinguished Kennedy’s conduct from that of a teacher who bowed her head in the cafeteria prior to eating a meal, stating that Kennedy insisted that his religious conduct occurred as he stood in the center of the football field immediately following the game as a mentor, motivational speaker, and role model to students who accompanied him.
With the additional record before it, the Supreme Court granted certiorari this time and found in favor of Kennedy.
Comparing the majority’s recitation of the facts in this case with the dissent’s summary, or the Ninth Circuit’s decision, could give the reader the impression they are discussing entirely different cases. The Court ruled on a narrow set of facts, finding that the record showed BSD disciplined Kennedy only for his decision to persist in praying quietly without his players after three games in October 2015, and that Kennedy’s contested exercise before the Court did not involve leading prayers with the team. (In reviewing BSD’s actions, the dissenting Justices factored in the entire context and history of Kennedy’s activities prior to those three games, which included overt prayer with students in the locker room before games and post-game talks at the 50 yard line that included religious references and prayer.) The Court majority found that Kennedy, at those three games, simply sought to engage in a sincerely motivated religious exercise involving giving “thanks through prayer” briefly “on the playing field” at the conclusion of each football game he coached, noting that Kennedy offered his prayers quietly while his students were otherwise occupied. The Court wrote that Kennedy “prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters.” The Court also noted that Kennedy had indicated repeatedly that he was willing to wait until the game is over and the players had left the field to walk to the 50-yard line to say a short, private, personal prayer.
The Court made clear that while employees’ private, personal prayers are allowed, coaches and teachers cannot coerce students to pray with them. Without evidence that students had been “directly coerced,” however, the Court found it was improper to bar Kennedy from praying on the 50-yard line. The Court noted that there has been disagreements on the Court regarding what exactly qualifies as impermissible coercion, but found that in this case, “Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion.”
AALRR Partners Mark Bresee and Marlon Wadlington wrote an amicus brief in support of BSD on behalf of the California School Boards Association’s Education Legal Alliance and its member school districts and county offices of education statewide. The amicus brief argued that this case was not about whether private personal prayer should be allowed, but rather whether a school district should be liable for an employee who chooses to pray with students while on duty at school events after having been given accommodations for private prayer. The brief argued that a ruling against BSD, based on the specific facts of the case (which included students on the football field getting knocked over by spectators running onto the field to support Kennedy and kneel next to him), would put school districts in a precarious position by inviting litigation and the expenditure of taxpayer money to defend it, and making it difficult for school administrators to determine how to address specific situations with less clarity than in the past.
After the Court’s decision, as always, districts should exercise caution in restricting employee conduct related to private prayer, but this case continues to support the requirement that districts engage in fact-specific analysis when restricting employee conduct, and when necessary, engage in the interactive process with employees to provide accommodations. In the coming weeks AALRR will be offering a webinar on the decision to further review the decision and its implications, provide specific guidance, and answer questions.