Kennedy v. Bremerton School District

Issues

Does a prayer said by a public-school football coach in front of students constitute government speech unprotected by the First Amendment or private speech; and if it is private speech protected under the Free Speech and Free Exercise Clause, must a public school still prohibit it under the Establishment Clause?

Oral argument:

April 25, 2022

Court below:

United States Court of Appeals for the Ninth Circuit

This case asks the Supreme Court to decide whether a public school can prohibit a football coach from praying at midfield after a game ends. Petitioner Joseph A. Kennedy argues that he has a First Amendment right to pray on school grounds as long as he does so in his capacity as a private citizen and not as a coach. Respondent Bremerton School District contends that Kennedy impermissibly engaged in religious expression while in the course of performing his duties as a public-school employee. Therefore, Bremerton School District argues that it is properly within their discretion to prohibit Kennedy’s conduct as government speech. Bremerton School District further asserts that even if Kennedy’s prayer is properly considered private speech, they are compelled to prohibit it as a violation of the Establishment Clause. This case holds implications for the nature of the coach-student relationship, the scope of religious expression on public grounds, and the appropriate balance between free speech and religious pluralism.

Questions as Framed for the Court by the Parties

(1) Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection; and (2) whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise clauses, the Establishment Clause nevertheless compels public schools to prohibit it.

Facts

Joseph A. Kennedy (“Kennedy”) is a practicing Christian who served as a football coach at Bremerton High School in Bremerton, Washington, from 2008 to 2015. Kennedy v. Bremerton School District, at 1010.

Since the start of his employment, Kennedy would kneel and recite a prayer of gratitude at midfield at the end of each game “for what the players had accomplished,” “for the opportunity to be part of [the team’s] lives through football,” and “for player safety, sportsmanship, and spirited competition.” Id. Praying at midfield necessarily meant that Kennedy was in full view of all students, parents, and other community members attending the game. Id. At first, when Kennedy began this practice in 2008, he prayed alone. Id. Eventually, however, his players would join him. Id. The level of participation varied over time, sometimes involving no players at all, and sometimes including most of the team, and even players from the opposing team. Id. Over the years, Kennedy’s religious practice evolved from reciting short prayers to conducting lengthier, more involved rituals that included holding up helmets from each team and delivering speeches that combined religious prayers with motivational content. Id. at 1011.

Bremerton School District (“BSD”) first became aware of this practice in 2015 and conducted an inquiry into whether Kennedy had violated the school’s policy on religious activity and practice. Id. The policy stated that “[s]chool staff shall neither encourage nor discourage a student from engaging in non-disruptive oral or silent prayer or any other form of devotional activity,” but the policy did not expressly prohibit employees from engaging in religious expression. Id. Following the inquiry, a BSD superintendent wrote a letter to Kennedy to clarify that Kennedy was “free to engage in religious activity, including prayer, so long as it [did] not interfere with job responsibilities.” Id. The superintendent further specified that “such activity must be physically separate from any student activity, and students may not be allowed to join such activity.” Id.

After receiving the letter, Kennedy temporarily stopped praying after football games. However, he later wrote to inform BSD that he would resume praying after games on the 50-yard line and that he would allow students to join him if they so wished. Id. at 1011–12. The next time Kennedy prayed, a large gathering of coaches, players, a state representative, as well as members of the public joined him, stampeding over others to get to the field. Id. at 1012–1013. BSD sent Kennedy another letter stating that he was in violation of the school district’s policy, and offered accommodations that Kennedy declined. Id. at 1013. Kennedy was eventually placed on paid administrative leave. Id. at 1014. At the end of the season, he was not recommended to be rehired. Id. Kennedy did not apply to coach for the 2016 season. Id.

Kennedy filed suit to vindicate his right “to act in accordance with his sincerely held religious beliefs,” and alleged violations under the Free Speech and Free Exercise Clauses of the First Amendment, and under Title VII of the Civil Rights Act of 1964. Id. He moved for a preliminary injunction, which the district court denied, holding that Kennedy was a public employee and therefore his speech was not protected under the First Amendment. Id. A panel of the Ninth Circuit affirmed. Id.

Kennedy then sought certiorari from the Supreme Court. Id. His motion was denied. Id. On remand, the district court found that “the risk of constitutional liability associated with Kennedy’s religious conduct was the ‘sole reason’ [BSD] ultimately suspended him.” Id. The district court granted summary judgment to BSD. Id. The Ninth Circuit affirmed but denied rehearing en banc. Id.

Thereafter, the Supreme Court granted certiorari on January 14, 2022. Id. at 1010; Brief for Petitioner, Joseph A. Kennedy at 3.

Analysis

PRIVATE SPEECH VERSUS GOVERNMENT SPEECH

Petitioner Kennedy argues that his First Amendment right to engage in private religious expression was violated when he was dismissed from Bremerton School District for praying at midfield after a football game. Brief for the Petitioner, Joseph A. Kennedy at 23. Kennedy emphasizes that his right to private prayer is doubly protected under both the Free Speech Clause and the Free Exercise Clause of the First Amendment. Brief for the Petitioner at 23. Kennedy acknowledges that a coach’s speech can be restricted under the government speech doctrine, conceding that under Garcetti v. Ceballos a school retains the ability to “exercise…control over what the employer itself has commissioned or created.” Id. at 26. However, Kennedy maintains that his prayer here falls outside the scope of what the school commissioned from him as a coach, and therefore cannot be properly restricted by the school as government speech. Id.

Kennedy emphasizes that the mutually reinforcing protections of the Free Speech and Free Exercise Clauses apply even on public school grounds. Id. at 25. To support this, Kennedy explains that the government speech doctrine does not turn on setting; rather, it turns on whether the speech in question is “ordinarily within the scope of an employee’s duties” as explained in Lane v. Franks. Id. at 27–28. Here, Kennedy contends that the scope of his employee duties is limited to the coaching duties he was hired and paid by the school to perform. Id. at 26.

According to Kennedy, these paid, commissioned duties properly included calling plays and delivering motivational speeches but did not include his private post-game prayer. Id. Kennedy admits that had he prayed impermissibly while giving a motivational speech, such conduct would have been within the school district’s authority to prohibit. Id. at 27. Here, in contrast, Kennedy warns that upholding the Ninth Circuit’s conclusion that his post-game prayer qualifies as government speech would be an “excessively broad job description” that contradicts precedent and dangerously distorts government-speech analysis. Id. at 29–30.

Respondent BSD argues that Kennedy’s conduct is unprotected government speech that falls under the school’s authority to restrict. Brief for the Respondent, Bremerton School District at 22. BSD points out that public employers are authorized under the government speech doctrine to regulate their employees’ speech so that they can properly maintain order and control over their operations. Brief for the Respondent at 22. BSD insists that this authority includes the discretion to restrict religious expression when an employee is on duty. Id.

BSD argues that everything a coach says while on school grounds is properly considered government speech because coaches enjoy a special status as “mentor[s] and role model[s]” who are “constantly being observed by others.” Id. at 29. Given this status, BSD asserts that Kennedy’s duties as a coach extend to his post-game activities. Id. at 24. BSD points out that even Kennedy admitted he was on duty “until the last kid leaves.” Id. at 22.

BSD emphasizes that Kennedy’s disavowal of the school’s authority over his speech is illogical: according to Kennedy, the more an employee digresses from the duties he was hired to perform, the less authority an employer has to discipline such conduct, even when that conduct negatively impacts his duties. Id. at 25. Here, BSD asserts that when Kennedy digressed from coaching to lead his students in prayer, his actions had the negative impact of coercing them into joining him in religious expression. Id. at 34. BSD maintains that Kennedy’s prayer therefore improperly impacted his duties as a coach, and as such, is within the school’s authority to prohibit. Id. at 34.

VIOLATION OF THE ESTABLISHMENT CLAUSE

Kennedy argues that a public school does not unconstitutionally endorse religion by permitting coaches to engage in private religious expression on school grounds. Brief for the Petitioner at 33. Kennedy emphasizes that both he and his students have the right to engage in voluntary private prayer on school grounds, noting that under Tinker v. Des Moines Independent Community School District, “[n]either students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Id. at 25, 45.

Kennedy declares that if coaches are indeed role models, then it is beneficial, not coercive, for students to see their mentors model private religious exercise. Id. at 22. Rather, Kennedy cautions, prohibiting mentors from engaging in religious expression would convey hostility towards religion, which would be detrimental for students. Id. at 28. Though the Establishment Clause was enacted primarily to prohibit government endorsement of religion, Kennedy asserts that it also protects against government hostility towards religion. Id. at 45. Kennedy argues, therefore, that the school district is constitutionally compelled to employ the least restrictive means possible here to serve its interests. Id. at 45. Kennedy suggests that a disclaimer of endorsement by the school would be the least restrictive means of avoiding an Establishment Clause violation and would more properly accord with the First Amendment principle of countering speech with more speech, instead of with suppression. Id. at 34. Here, Kennedy notes that since the school disclaimed Kennedy’s prayer, this should suffice to rebut any allegations of endorsement. Id. Thus, Kennedy concludes that any mistaken notion of endorsement is not a justifiable reason to suppress his private expression. Id. at 33.

BSD responds that the permissibility of Kennedy’s conduct depends on the context in which it took place. Brief for the Respondent at 34. Had Kennedy inconspicuously kept a Bible on his desk, for example, BSD concedes that the school would not have had a right to restrict his private practice. Id. at 34. Here, in contrast, BSD argues that Kennedy’s prayer was not private conduct, but instead highly demonstrative public conduct. Id. at 21. As such, BSD notes that a failure to suppress it would have implicated the school in endorsing religion, in violation of the Establishment Clause. Id. To support this, BSD emphasizes that Kennedy’s speech was not solitary or quiet, as Kennedy characterizes it, but rather a highly visible and audible motivational group prayer. Id. at 24. BSD points out that Kennedy’s efforts to generate publicity bear out the performative intent behind his prayer, “utterly bel[ying] his contention that the prayer was personal and private.” Id. at 30. According to BSD, the appearance of endorsement was heightened given that Kennedy had “actively sought support from the community” as well as media attention. Id. at 26–27. Therefore, given the public, long-standing nature of Kennedy’s practice, BSD argues that any disclaimer would have been perceived by the school community as disingenuous. Id. at 29. According to BSD, Kennedy’s actions could only be persuasively remedied through suppression. Id.

BSD explains that Kennedy’s conduct was coercive because Kennedy’s ability to command the attention of his players derived not from his position as a private citizen, but rather from his authority as a coach. Id. at 25, 33. BSD notes that students’ desire to emulate their role models can cause them to feel socially pressured to participate in activities contrary to their personal beliefs. Id. at 28. BSD points out, for example, that students belonging to religious minorities might have felt compelled to join to avoid visibly outing themselves as “outsiders and religious dissenters.” Id. at 25. BSD therefore suggests that Kennedy’s conduct may have unconstitutionally infringed on his students’ religious freedom. Id. at 27. BSD emphasizes that all precedent has consistently ruled in favor of school districts restricting prayer at public school sporting events. Id. at 33. BSD thus explains that both the factual record and precedent support its conclusion that Kennedy engaged in impermissible religious expression while on duty as a coach, and that it is therefore within the school’s authority to suppress such coercive conduct as government speech or otherwise as a violation of the Establishment Clause. Id. at 33–35.

Discussion

THE UNIQUE NATURE OF THE COACH-ATHLETE RELATIONSHIP AND ITS IMPACT ON ADOLESCENTS

Coach Tommy Bowden, in support of Kennedy, contends that the relationship between student-athletes and coaches is unique, with the best coaches relying on their religious faith or professional sensibilities to shape their position as teachers, role models, mentors, counselors, and pseudo-parental figures. Brief of Amicus Curiae Coach Tommy Bowden in Support of Petitioner at 14. Former professional football players, Steve Largent and Chad Hennings, add that limiting the ability of coaches to draw upon their faiths in the course of their professional duties would limit the authenticity and meaning of coach-athlete relationships, thereby eroding the ability of coaches to be successful role models and mentors. Brief of Amicus Curiae Former Professional Football Players Steve Largent and Chad Hennings in Support of Petitioner at 7–9. Furthermore, the American First Policy Institute notes that a supportive sports environment, fostered by high-quality coach-athlete relationships, is linked to higher levels of prosocial behavior in at-risk adolescents and that this effect may be amplified by religious involvement. Brief of Amicus Curiae The America First Policy Institute in Support of Petitioner at 13–14. It argues that forcing coaches to abandon their religious identities not only limits their ability to build relationships, supply guidance and motivation, and intervene in the lives of adolescents, but may even deter them from pursuing coaching positions in the places where they are needed the most. Id. at 18.

Lambda Legal, in support of BSD, contends that due to the unique coach-student relationship, students may seek to cultivate favor with coaches despite betraying their own faith or identity-based beliefs. Brief of Amicus Curiae Lambda Legal Defense and Education Fund, Inc. et al. (“Lambda Legal”) in Support of Respondent at 19–20. New York and several other states (“the States”) concur, noting that participating in high school sports is a pathway to economic and educational mobility in which coaches occupy a potent role—controlling playing time, college recruitment, and professional development—thereby leading to a situation ripe for potential coercion. Brief of Amicus Curiae New York et al. in Support of Respondent at 17–19. Similarly, former professional football players Obafemi D. Ayanbadejo Sr., Christopher J. Kluwe, and Frank T. Lambert claim that for players to succeed, they must build relationships with their coaches which may lead to unwilling participation in religious acts. Brief of Amicus Curiae Obafemi D. Ayanbadejo Sr. et al. in Support of Respondent at 13–15, 19. Several church-state scholars, along with Jo Ann Magistro and Alan Broadman, the Freedom from Religion Foundation, and the American Civil Liberties Union (“ACLU”), further note that the Establishment Clause jurisprudence explicitly rests on the recognition that children are particularly vulnerable to compulsion. Brief of Amicus Curiae Church-State Scholars in Support of Respondent at 18, Brief of Amicus Curiae Jo Ann Magistro and Alan Broadman in Support of Respondent at 16, Brief of Amicus Curiae Freedom from Religion Foundation et al. in Support of Respondent at 17, Brief of Amicus Curiae the American Civil Liberties Union and ACLU of Washington (“ACLU”) in Support of Respondent at 19. Psychology and neuroscience scholars explain this vulnerability is based on unique aspects of adolescent brain development which makes them more likely to respond to suggestions from authority figures. Brief of Amicus Curiae Psychology and Neuroscience Scholars in Support of Respondent at 18–19.

RISKS TO RELIGIOUS TOLERANCE AND COEXISTENCE

The World Faith Foundation, and the Institute for Faith and Family, in support of Kennedy, contend that forcing officials to hide prayer acts as a disservice to students, particularly in the educational context where they should be learning about a diverse array of religious beliefs, practices, and viewpoints. Brief of Amicus Curiae World Faith Foundation and Institute for Faith and Family in Support of Petitioner at 11–13. Several state legislators concur, arguing that this would imply that religious expression is something to be feared, thereby undermining societal principles of tolerance and pluralism—including recognition and respect of religious differences. Brief of Amicus Curiae Current State Legislators in Support of Petitioner at 6–7. Galen Black adds that experiencing social pressure as a result of others’ religious practice is simply an intrinsic part of living in a pluralistic society. Brief of Amicus Curiae Galen Black in Support of Petitioner at 17–18, 24. The Jewish Coalition for Religious Liberty and the Islam and Religious Freedom Action Team of the Religious Freedom Institute further add that many non-Christian religious observances may not be easily hidden and that this standard would disproportionately impact those who are members of minority faiths. Brief of Amicus Curiae Jewish Coalition for Religious Liberty and the Islam and Religious Freedom Action Team of the Religious Freedom Institute in Support of Petitioner at 8–10. Additionally, the United States Conference of Catholic Bishops and twenty-seven states note that eradicating visible religious expression from the school environment would undermine efforts to train a citizenry who are able to interact with a diverse array of persons in society at-large. Brief of Amicus Curiae United States Conference of Catholic Bishops in Support of Petitioner at 16–17, Brief of Amicus Curiae Twenty-Seven States in Support of Petitioner at 22–23.

Lambda Legal, in support of BSD, counters that religious activity in the school context can actually undermine religious tolerance and pluralism by coercing members of minority faiths or nonbelievers to conform to the majority religious practice. Brief of Lambda Legal at 22. Bremerton community members concur, noting that, for example, Jewish people have a long history of “convert or die,” meaning that public Christian prayer can be deeply triggering; ultimately undermining adherents belonging to a different faith from feeling safe. Brief of Amicus Curiae of Bremerton Community Members—BHS Football Team Alumnus, Community Leaders, and Educators—in Support of Respondent at 10. The church-state scholars add that if public school officials imply that a particular faith is preferred over others, schools risk teaching impressionable adolescents that it is permissible for the state to minimize other faiths and impresses upon students of the non-preferred faith that society does not respect their religious freedom and equality of citizenship. Brief of Church-State Scholars at 20. Several United States House of Representatives members add that, by allowing public officials to subject students, particularly those of differing religious backgrounds, to public prayer, it would potentially raise the specter of religiously motivated violence and conflict. Brief of Amicus Curiae Members of the U.S. House of Representatives in Support of Respondent at 9, 14. Ultimately, the ACLU argues that adhering to the Establishment Clause precedent would promote religious inclusivity, rather than favoritism and its accompanying social ills. Brief of the ACLU at 16.