The Supreme Court seemed to be generally sympathetic toward a high school football coach who claims he was fired for kneeling to pray at the 50-yard line after football games.
Coach Joseph A. “Joe” Kennedy, who no longer works for the taxpayer-funded Bremerton School District in Washington state, says his rights were violated when the school district forbade him from praying in view of the public after games. Some of the facts, such as whether his prayers were silent and how he came to not be employed by the district, are in dispute.
The case is Kennedy v. Bremerton School District, court file 21-418, an appeal from the frequently overturned U.S. Court of Appeals for the 9th Circuit. One hour was scheduled for the April 25 hearing, but it ran over by 48 minutes.
The school district argues that when Kennedy prayed midfield after games, he was viewed by onlookers as a coach who was serving as a mentor and role model. In this theory of the case, Kennedy was acting as a government employee at that moment, which means that he was engaging in speech that constituted government speech that isn’t protected by the First Amendment.
The 9th Circuit’s “understanding of the free speech rights of public school teachers is troubling and may justify review in the future,” but concluded that the high court should stay its hand until the lower courts definitively determined the reason for Kennedy’s termination.
Kennedy’s attorney, Paul Clement, said his client’s rights were violated.
“When Coach Kennedy took a knee at midfield after games to say a brief prayer of thanks, his expression was entirely his own. That private religious expression was doubly protected by the Free Exercise and Free Speech clauses of the U.S. Constitution,” the attorney said.
“When the school district fired him for that fleeting religious exercise out of endorsement concerns, it not only violated the First Amendment ... it ignored a veritable wall of this court’s precedents that make clear that a school does not endorse private religious speech just because it fails to censure it. As much as the district would like to change the subject, the record is clear that Coach Kennedy was fired for that midfield prayer, not for any earlier practices.”
But school district attorney Richard Katskee characterized Kennedy as a showboating troublemaker who brought his problems on himself.
“No one doubts that public school employees can have quiet prayers by themselves at work even if students can see,” Katskee said.
“If that were the issue, there wouldn’t be a case here because the district allowed that. But that wasn’t good enough for Mr. Kennedy. He insisted on audible prayers at the 50-yard line with students. He announced in the press that those prayers are how he helps these kids be better people. And after the district closed the field to the public, he expressly permitted legislators and others to join him.”
Under current precedent, inviting others to join him after the field was closed to the public means that Kennedy wasn’t functioning as a private citizen, Katskee said.
Some of the children felt “pressured” by Kennedy to pray, the attorney said, noting that coaches “have far more power and influence, especially at the time and place of those traditional post-game speeches.”
Justice Brett Kavanaugh suggested that Kennedy’s promotion of prayer might influence students and parents, “because every player’s trying to get on the good side of the coach. And every parent is worried about the coach exercising favoritism in terms of the starting lineup, playing time, recommendations for colleges.”
But Kavanaugh also suggested that the prayers were private.
“This wasn’t ‘Huddle up, team,’” he said, noting that the prayers couldn’t be heard by all the players.
Justice Elena Kagan also suggested that people may have felt pressured to pray.
“I’m going to just sort of suggest the idea of why the school can discipline him [i.e. Kennedy] is that it puts some kind of undue pressure, a kind of coercion, on students to participate in religious activities when they may not wish to, when their religion is different or when they have no religion.”
Justice Clarence Thomas also said Kennedy’s prayer was private.
“We know it is not a part of his job,” he said.
Justice Neil Gorsuch said tolerating a teacher’s religious speech doesn’t in itself constitute a public school endorsing religion.
“If we thought the school district misunderstood the Establishment clause teachings of this court, what should we do?” he asked Katskee.
Mat Staver, chairman of Liberty Counsel, which filed a friend-of-the-court brief in the case, said, “This case is an opportunity for the High Court to affirm that every American has the right to engage in individual religious expression without fear of punishment. Banning a coach from silently praying after a game is illogical and unconstitutional.”
