In a 6-3 opinion, the U.S. Supreme Court decided the case of Kennedy v. Bremerton School District, holding that the free exercise and free speech clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.
In this case, a Washington school district football coach, Joseph Kennedy, had a personal practice of giving “thanks through prayer on the playing field” at the conclusion of each game. Mr. Kennedy offered his prayers after the players and coaches had shaken hands, by taking a knee at the 50-yard line and praying “quiet[ly]” for “approximately 30 seconds.” Initially, Mr. Kennedy prayed on his own but over time, some players asked whether they could pray alongside him. Mr. Kennedy responded by saying, “This is a free country. You can do what you want.” The number of players who joined Mr. Kennedy eventually grew to include most of the team, at least after some games. Sometimes team members invited opposing players to join. Other times, Mr. Kennedy prayed alone. Eventually, Mr. Kennedy began incorporating short motivational speeches with his prayer when others were present. Separately, the team at times engaged in pregame or postgame prayers in the locker room. The Supreme Court noted that it seemed this practice was a “school tradition” that predated Mr. Kennedy’s tenure. Mr. Kennedy explained that he “never told any student that it was important they participate in any religious activity” and said that he “never pressured or encouraged any student to join” his postgame midfield prayers.
This went on for many years, until an employee from another school commented positively on the practice to a Washington District principal. The District then contacted Mr. Kennedy about “two problematic practices” - specifically, the “inspirational talk[s]” that included “overtly religious references” likely constituting “prayer” with the students “at midfield following the completion of . . . game[s]” and the fact that Mr. Kennedy had led “students and coaching staff in a prayer” in the locker-room tradition that “pre-dated [his] involvement with the program.” The District explained to Mr. Kennedy that it sought to establish “clear parameters” “going forward,” and instructed Mr. Kennedy to avoid any motivational “talks with students” that “include[d] religious expression, including prayer,” and to avoid “suggest[ing], encourag[ing] (or discourag[ing]), or supervis[ing]” any prayers of students, which students remained free to “engage in.” The District also explained that any religious activity on Mr. Kennedy’s part must be “nondemonstrative (i.e., not outwardly discernible as religious activity)” if “students are also engaged in religious conduct” in order to “avoid the perception of endorsement.”
Mr. Kennedy ended the locker-room prayers and the practice of incorporating religious references or prayer into his postgame motivational talks to his team on the field. But because of his “sincerely-held religious beliefs,” he felt “compelled” to offer a “post-game personal prayer” of thanks at midfield. He asked the District to allow him to continue that “private religious expression” alone. He noted that, consistent with the District’s policy, he “neither requests, encourages, nor discourages students from participating in” these prayers, and emphasized that he sought only the opportunity to “wai[t] until the game is over and the players have left the field and then wal[k] to mid-field to say a short, private, personal prayer.” He said that it would be acceptable to him to wait to say his “prayer while the players were walking to the locker room” or “bus,” and then catch up with his team.
He also noted that the District policy prohibited him from “discourag[ing]” independent student decisions to pray. Yet the District issued him another letter that forbade Mr. Kennedy 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.” The District did so because it judged that anything less would lead it to violate the Establishment Clause. After receiving that letter, Mr. Kennedy offered a brief prayer following the next game. It was noted that, when he bowed his head at midfield, most of his players were engaged with singing the school fight song to the audience. Though Mr. Kennedy was alone when he began to pray, players from the other team and members of the community joined him before he finished his prayer. This event spurred media coverage about the exchange between the District and Mr. Kennedy on this topic, and ultimately the District placed robocalls to parents to inform them that public access to the field was forbidden, it posted signs and made announcements at games saying the same thing, and it had the police secure the field in future games.
Before a game a few days later, the District sent another letter to Mr. Kennedy in which the District expressed appreciation for Mr. Kennedy’s efforts to comply with the District’s directives, including avoiding “on-the-job prayer with players in the . . . football program, both in the locker room prior to games as well as on the field immediately following games,” and also admitted that, during Mr. Kennedy’s recent postgame prayer, his students were otherwise engaged and not praying with him, and that his prayer was “fleeting.” Yet the District explained that a “reasonable observer” could think government endorsement of religion had occurred when a “District employee, on the field only by virtue of his employment with the District, still on duty” engaged in “overtly religious conduct.” The District thus made clear that the only option it would offer Mr. Kennedy was to allow him to pray after a game in a “private location” behind closed doors and “not observable to students or the public.” Still after that evening’s game, Mr. Kennedy knelt at the 50-yard line, where “no one joined him,” and bowed his head for a “brief, quiet prayer.” And, again, after the final relevant football game of the season, Mr. Kennedy knelt alone to offer a brief prayer as the players engaged in postgame traditions. While he was praying, other adults gathered around him on the field.
Shortly after the final game, the District placed Mr. Kennedy on paid administrative leave and prohibited him from “participat[ing], in any capacity, in . . . football program activities.” In a letter explaining the reasons for this disciplinary action, the superintendent criticized Mr. Kennedy for engaging in “public and demonstrative religious conduct while still on duty as an assistant coach” by offering a prayer following the games. The letter did not allege that Mr. Kennedy performed these prayers with students, and it acknowledged that his prayers took place while students were engaged in unrelated postgame activities. Additionally, the letter faulted Mr. Kennedy for not being willing to pray behind closed doors. In a subsequent Q&A document provided to the public, the District admitted that it possessed “no evidence that students have been directly coerced to pray with Kennedy.” The Q&A also acknowledged that Mr. Kennedy “ha[d] complied” with the District’s instruction to refrain from his “prior practices of leading players in a pre-game prayer in the locker room or leading players in a post-game prayer immediately following games.” But the Q&A asserted that the District could not allow Mr. Kennedy to “engage in a public religious display” since otherwise, the District would “violat[e] the . . . Establishment Clause” because “reasonable . . . students and attendees” might perceive the “district [as] endors[ing] . . . religion.” While Mr. Kennedy received “uniformly positive evaluations” every other year of his coaching career, after the 2015 season ended in November, the District gave him a poor performance evaluation, which advised against rehiring Mr. Kennedy on the grounds that he failed to follow district policy regarding religious expression and “failed to supervise student-athletes after games.” Mr. Kennedy did not return for the next season.
Mr. Kennedy sued the District in federal court, alleging that the District’s actions violated the First Amendment’s Free Speech and Free Exercise Clauses. The District Court sided with the District, concluding that a “reasonable observer . . . would have seen him as . . . leading an orchestrated session of faith” and that if the District had not suspended him, the District might have violated the Constitution’s Establishment Clause. On appeal, the Ninth Circuit affirmed.
Yet the U.S. Supreme Court disagreed and held that Mr. Kennedy’s prayer was protected by the Free Exercise and Free Speech Clauses of the First Amendment and did not violate the Establishment Clause of the First Amendment. The Court found that Mr. Kennedy’s speech was private speech, not government speech. When he prayed during the three football games at issue, he was not engaged in speech “ordinarily within the scope” of his duties as a coach. He did not speak pursuant to government policy nor was he seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach. Further, the timing of the prayers also confirmed for the Court that this was private speech. The prayers occurred during the postgame period when coaches were free to attend briefly to personal matters - everything from checking sports scores on their phones to greeting friends and family in the stands. The Court found that it did not matter that Mr. Kennedy’s prayers took place “within the office” environment - here, on the field of play; instead, what mattered was whether Mr. Kennedy offered his prayers while acting within the scope of his duties as a coach, which the Court found that he did not.
The Court also found that Mr. Kennedy did not compel students to pray. The Court noted that the District itself was not concerned at the time that Mr. Kennedy coerced, required, or asked any student to pray. Instead, the Court found that Mr. Kennedy did not seek to direct any prayers to students or require anyone else to participate, and, therefore, no students were coerced to participate.
Finally, the Court addressed the District’s position that any visible religious conduct by a teacher or coach should be deemed impermissibly coercive to students, as a matter of law. The Court noted that an Establishment Clause violation does not automatically follow whenever a public school or other government entity “fail[s] to censor” private religious speech. Nor does the Clause “compel the government to purge from the public sphere” anything an objective observer could reasonably infer endorses or “partakes of the religious.” The Court noted that this would result in schools being required to fire teachers for praying quietly over their lunch, for wearing a yarmulke to school, or for offering a midday prayer during a break before practice. Ultimately, the Court explained that permitting private speech is not the same thing as coercing others to participate in it.
This case has significant implications for school districts and alters what was generally understood a responsibility to separate religious practice from government conduct under the Establishment Clause. It creates new and important factors to consider when addressing employee religious activity. Please contact your legal counsel when such First Amendment issues arise.
