From K-12 Dive
By Naaz Modan
June 27, 2022
Dive Brief:
Bremerton School District violated an employee’s First Amendment rights when it fired football coach Joseph Kennedy for praying on the 50-yard line after his team’s games, sometimes with students, the Supreme Court ruled in a 6-3 decision on Monday.
The Washington school district discriminated against Kennedy and “sought to punish” him because of his religious expression, Associate Justice Neil Gorusch wrote for the majority.
Given that the case was not narrowly decided, it has major implications for how school districts manage their staff’s exercise of religious freedom.
Dive Insight:
During oral arguments in April, justices weighed where and how the football coach conducted his prayers. Disputes over some of these facts — and which facts the court prioritized — were expected to impact the outcome of the case.
Over the years, Kennedy prayed both with and without students, as well as out loud and quietly to himself. Kennedy’s legal team argued his prayers did not fall under his responsibilities as coach, as “he was on duty in a loose sense, but he was not on duty in a real sense” after games ended.
However, according to the school district, parents said Kennedy’s prayers made students feel coerced to join.
“But in this case Mr. Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion,” the majority opinion said. In deciding the case, the Supreme Court said the district could not prove the coach had directly coerced students.
In response to this, Justice Sonia Sotomayor wrote in a dissenting opinion that the court is “failing to acknowledge the unique pressures faced by students when participating in school-sponsored activities.” Associate Justices Stephen Breyer and Elena Kagan joined that dissent.
During oral arguments and similar to the final decision, justices seemed mostly split among ideological lines.
Sotomayor drew an analogy between the coach’s duty’s during and after football games to that of a teacher’s, whose “duty is not from the beginning of the bell to the end of the bell, the duty is while she is in the classrooms.”
″So why can’t an employer tell an employee what they’re permitted to do — personal or otherwise — during that time?” asked Sotomayor.
“Rather than respect the First Amendment’s double protection for religious expression, it [the district] would have us preference secular activity,” Gorsuch said in the majority opinion. “Not only could schools 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. Under the District’s rule, a school would be required to do so.”
Public school advocates and education law experts previously warned a decision to broaden the case, rather than rule narrowly, would mean schools nationwide would have to reconsider their policies around religious practice and expression in schools.
Now, lawyers say the decision should lead districts to reexamine their policies and will require schools to make a stronger case when prohibiting teachers from religious speech due to separation of church and state.
Jesse Panuccio, partner at law firm Boies Schiller Flexner and former official at the U.S. Department of Justice, said schools cannot base their policies on a fear that they will be perceived as endorsing religion by permitting private exercise of religion.
“For example, if a school bans a teacher or student from wearing a religious item of clothing, or prohibits private prayer after class or after a game, such a policy is likely unconstitutional and should be revisited,” Panuccio said.
“This is a nightmarish ruling for districts,” said Sasha Pudelski, advocacy director for AASA, the School Superintendents Association. The organization filed a court brief in favor of Bremerton School District. “This decision will sow confusion as to when prayer by a school official can be appropriate and whether a district can shield students adequately from perceived or actual religious coercion.”
The decision, Pudelski added, “will upend the secular public school environment, potentially leading to countless unintended mistakes by administrators and superintendents.”
It will also lead to more litigation against districts that are relying on educators to make daily decisions around what is acceptable prayer and what is not, Pudelski said.
Photo: Court documents include images of Coach Kennedy leading students in prayer on the football field. Retrieved from The United States Supreme Court.
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