In a recent decision in Kennedy v. Bremerton School District, the U.S. Supreme Court ruled that a public school district could not prohibit a high school football coach from engaging in “brief, quiet prayers” on the school’s football field immediately following the completion of games. The Court ruled that the coach’s conduct was protected under both the Free Speech clause and the Free Exercise clause of the First Amendment.
The coach engaged in the prayer ritual on the field for several years, initially by himself, and later with other players and coaches joining him. He also engaged in locker-room prayers with the team before or after games. The school district learned of the coach’s conduct when a coach from another school district praised the school district for allowing the coach to pray on the field after games. After learning of the coach’s conduct, the school district sent him a letter explaining that he needed to avoid leading or encouraging students in prayers or other religious expressions and that his own religious activity must be “non-demonstrative” if students were involved to avoid the appearance that the school district was endorsing religious activities. The coach stopped his locker-room prayers with the team but felt compelled to continue his own “post-game personal prayer” at midfield. Two days before the school district’s homecoming game in 2015, the coach requested that he be permitted to say a short, private prayer at midfield after students left the field. The school district responded by prohibiting the coach from engaging in “any overt actions” that could “appea[r] to a reasonable observer to endorse . . . prayer . . . while he is on duty as a District-paid coach.”
Nonetheless, prior to the homecoming game, the football coach made several media appearances to publicize that he planned to pray at the 50-yard line following the homecoming game, despite the prior warnings from the school district. This led to news articles in the local media and a television broadcast of the game. After the homecoming game was over, the coach went to midfield, where he knelt to pray while most of his players were singing the school’s fight song. The coach was joined at midfield by coaches and players from the opposing team. Members of the public also joined the coach at midfield, while news cameras recorded the scene. Following the game, the school district again warned the coach against public displays of religion while he was on duty. The coach, however, continued his practice of kneeling at midfield to pray at two more games. The school district then placed the coach on paid administrative leave because he violated its directives and issued him a poor performance evaluation due to his failure to follow district policy concerning public displays of religious expression and his failure to supervise students. The coach did not return for the following season.
The coach then sued the school district, arguing that the district’s actions violated his First Amendment rights to free speech and free exercise of religion. The district argued that its policies and discipline of the coach was justified, because the coach’s outwardly religious conduct on the football field would lead a “reasonable observer” to conclude that the district “endorsed” the coach’s religious views, in violation of the First Amendment’s Establishment Clause.
Eventually, the case made its way to the Supreme Court, where the Court found that the coach’s prayers were private and not done within the scope of his employment. The Court noted that the prayers occurred during a period of time when the coach was free to conduct personal business and when he was not responsible for the supervision of students. Additionally, the Court found that the district failed to show that the coach’s conduct “coerced” students into participating in the prayers, despite the district court’s finding that players reportedly felt compelled to join the coach in prayer to stay connected with the team and ensure playing time. As a result, the Court found the coach’s “brief, quiet, personal religious observance” to be “doubly protected” by the First Amendment, in that it was protected by both his right to free speech and his right to the free exercise of religion.
In addition to the Court’s central holding, this is also an interesting case for the way the Court framed its analysis and the First Amendment rules it left in place. For example, the Court acknowledged the existing cases confirming that a public school cannot lead students in religious prayer (such as at graduation ceremonies or over a public address system at football games). The Court therefore focused solely on the three-game stint during which the coach engaged in “quiet” prayer instead of considering his long-standing tradition of leading the team in prayer and the media frenzy created by the coach surrounding this whole issue.
Also, the Court acknowledged and left in place the Pickering free speech analysis, under which public employees retain significant rights to speak freely if they are speaking as a private citizen on a matter of public concern. To find that this coach was speaking “as a private citizen,” however, the Court had to conclude that the coach was off duty for the few minutes between when the football game ended and when he was required to once again actively supervise students in the locker room and/or clean up after the event, etc. This exacting approach would seem to undercut the traditional approach that employees are considered to be “on duty” at least for the duration of the event they are supervising and likely will make it difficult for public school administrators to discern exactly when employees’ speech carries First Amendment protection.
For any questions or additional information on this case or other questions involving employees’ First Amendment rights, contact Jeff Goelitz, Chris Hoffmann, or any attorney in our Labor/Personnel practice group.