SCOTUS Preview: Kennedy v. Bremerton School District
|Topics:||Free Speech & Election Law • Religious Liberties|
|Sponsors:||Religious Liberties Practice Group|
This week, the Supreme Court set oral argument for a case centering on the First Amendment rights of public school teachers and coaches across the country. The case involves Coach Joe Kennedy, who was removed from his job as a football coach after kneeling for a brief, quiet prayer on the field after football games. Oral argument for Kennedy v. Bremerton School District will take place on April 25, 2022.
Who will be arguing at the Supreme Court?
Paul Clement, partner at Kirkland & Ellis LLP and former United States Solicitor General, will argue on behalf of Coach Kennedy. My firm, First Liberty Institute, serves as co-counsel in the case.
Americans United for Separation of Church and State represents the school district. Richard B. Katskee is lead counsel and is expected to argue on behalf of the school district.
What are the key legal issues?
The case involves the interplay between the Free Speech, Free Exercise, and Establishment Clauses at public schools. The Court granted certiorari on two questions:
- 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.
- 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.
The docket and associated briefs are available here.
What happened leading to the coach losing his job?
Coach Joe Kennedy, an eighteen-year Marine veteran, was an assistant coach for the Bremerton High School varsity football team in Washington state. Before he coached his first game, he made a commitment to God that he would give a prayer of thanksgiving at the conclusion of each game.
Initially, Kennedy prayed quietly and alone. After several games, some students took notice of Kennedy’s post-game prayers and asked if they could join him. He told them, “[t]his is a free country” and “[y]ou can do what you want.” Over time, and if students gathered, Kennedy began offering short motivational speeches to players, ending with a prayer. Sometimes no players gathered, and Kennedy prayed alone.
Kennedy continued his post-game prayer practice for seven years without complaint. When the practice came to school officials’ attention, Bremerton School District conducted a fact-finding investigation. A letter from the district recognized that when students participated in Kennedy’s postgame religious expression, they did so voluntarily. The letter noted that Kennedy had “not actively encouraged, or required, participation.” However, the District said that moving forward Kennedy must keep his prayers “physically separate from any student activity.” In compliance with the district’s directive, Kennedy immediately ceased praying with BHS students.
Kennedy, through counsel, sent a letter to the district formally requesting a religious accommodation under Title VII to kneel to say a brief personal prayer on the field after football games concluded. District officials acknowledged that Kennedy’s religious exercise was “fleeting,” and that the only issue now in play was whether Kennedy had a “right to conduct a personal, private prayer.” However, the district denied Kennedy’s request for accommodation. Instead, the district announced that Kennedy was prohibited from engaging in any “demonstrative religious activity.” The only accommodation the district offered was for Kennedy to pray in a “private location within the school building, athletic facility[,] or press box.”
After the district’s denial of Coach Kennedy’s request for an accommodation, Kennedy—unwilling to break his commitment to God—knelt alone to offer a brief, quiet prayer at the 50-yard line after the next football game. After this game, a district official said Kennedy’s actions “moved closer to what we want,” but are “still unconstitutional.” After the next football game, Coach Kennedy again knelt to say a brief, quiet prayer. Two days after the game, the district placed Coach Kennedy on administrative leave and barred him from coaching for “kneel[ing] on the field and pray[ing]” following the previous two football games.
The school district announced it would not rehire Coach Kennedy for the following year unless the coach affirms an intention to comply with the district’s directives. Coach Kennedy, seeking only to pray quietly, by himself, on the field after games, brought a lawsuit.
What are the parties’ primary legal arguments?
The parties primarily disagree about whether Coach Kennedy’s religious expression on the football field after games should be considered private speech or government speech under the public employee speech doctrine in Garcetti v. Ceballos. As both parties recognize, “The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties.”
The school district argues that Coach Kennedy’s prayer should be considered government speech because coaches are still on duty when the football game ends and remain on duty until the last child goes home. The school district argues that coaches are often mentors to students, “clothed with the mantle of one who imparts knowledge and wisdom,” quoting the Ninth Circuit’s opinion. Thus, it argues, expression made while being a role model on duty and visible to students should be classified as government speech subject to government control. The school district also argues that even if the speech is considered private speech, the Establishment Clause allows the government to censor the speech to avoid the risk of coercion or the appearance of endorsement.
Coach Kennedy argues that the Supreme Court has cautioned against allowing “excessively broad job descriptions,” that would turn virtually everything a public employee does into government speech subject to government control. He argues that the public schools do not own every on-the-job expression that its teachers or coaches may make around students. Because the school would not fire a coach for taking 30 seconds immediately after games to make a personal phone call or engage in other brief, personal expression, firing a coach for brief, personal, religious expression is unconstitutional religious discrimination.
The coach argues that the government does not run afoul of the Establishment Clause by tolerating private religious expression or activity. Schools that seek to stifle all personal religious expression, no matter how brief, or schools that seek to bar religiously observant role models from their ranks do not act neutrally, but instead show hostility toward religion in violation of the Constitution.
What is the procedural history of the case?
This case began in the United States District Court for the Western District of Washington in August of 2016.
Coach Kennedy initially sought a preliminary injunction to be able to continue coaching pending the resolution of the case. The Ninth Circuit affirmed the district court’s denial of the preliminary injunction, and the coach sought review. In 2019, the Supreme Court of United States denied the petition for review, allowing the case to proceed in the district court to develop the factual record.
Justice Alito, joined by Justices Thomas, Gorsuch, and Kavanaugh, issued a statement respecting the denial of certiorari. In the statement, they cited “important unresolved factual questions” that needed resolution. The four Justices also wrote that the “Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”
After the Ninth Circuit affirmed the district court’s summary judgment decision in favor of the school district, en banc review was denied over the objection of 11 judges. The Supreme Court then granted the petition for certiorari.
Is the case moot?
The school district filed a Suggestion of Mootness based upon Coach Kennedy’s move from Washington state to Florida. Coach Kennedy responded that his move was temporary to assist his father-in-law during a difficult time in his life. In his declaration, the coach stated that, should the Court grant relief, he intends to move back to Washington state immediately to resume his coaching duties and reunite with the majority of his family who reside in his home state.
What is the significance of the case?
The Court has long held that government employees do not “shed their constitutional rights to freedom of speech or expression” when they enter government employment. However, the precise contours of this promise remain unclear.
The case has the potential to clarify the scope of Free Speech and Free Exercise protections for government employees, particularly public school teachers and coaches. It also has the potential to bring clarity to public schools and other government employers regarding their rights and obligations under the Establishment Clause.
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