The Supreme Court has consistently banned school-sponsored prayer in public schools in K-12, whether at the beginning of the school day, during graduation ceremonies or before football games. Under the Equal Access Act, the Supreme Court has upheld that students are allowed to organize prayer and Bible study clubs during non-teaching hours. Nevertheless, school staff and outside adults may not actively participate.
Lower courts have mostly banned public school teachers from praying openly in the workplace, even if students are not involved. However, the Supreme Court has not addressed such a case directly – so far.
Kennedy v. Barmerton School District, a case from Washington State, scheduled for oral debates on April 25, 2022, could lead to further religious activity by teachers and other staff in public schools.
The question is whether the school administration violated the rights of Joseph Kennedy, a football coach at the time, and whose contract was not renewed because he ignored her directive to stop kneeling in silent prayer on the field after games. Kennedy argues that the board violated his first amendment rights to freedom of expression and religion, along with his rights under the Civil Rights Act, which prohibits discrimination at work.
The Supreme Court addresses two key questions: Are prayers that public school staff say to students protected by their initial rights of amendment; And if so, do education officials still have to ban them in order to avoid promoting certain religions and violating the founding clause.
From my point of view as an education law expert, the case is noteworthy because the court has to resolve sticky questions about whether public school workers can pray while supervising students, or whether it crosses the border and becomes a forbidden government speech.
Kennedy v. Bramerton also reflects the built-in tension between the two sections of the First Amendment on Religious Freedom: The free movement clause protects the right of individuals to practice their faith as they wish, while the founding clause prohibits the government from “establishing” religion.
In other words, there is tension between the right of public servants to religious expression within the limits of the law and the needs of employers to avoid violating the establishment clause.
The facts of the case
In 2008, Kennedy, a self-described Christian, worked as the head coach of the university’s youth football team and as the assistant coach of the University of Bremerton High School team. He initially knelt on the 50-yard line after games, regardless of the outcome, carrying a short, silent prayer of thanks.
While Kennedy first prayed alone, eventually most of the players joined his team, and later members of rival teams. He later added inspiring speeches, prompting some parents and school staff to express concerns that actors would feel compelled to attend.
The school council instructed Kennedy to stop praying on the pitch because officials feared his actions might endanger him for violating the First Amendment. The government is not allowed to enact laws “that respect the establishment of a religion, or a ban on its free exercise” – often understood as meaning that public officials cannot promote certain beliefs over others.
In September 2015, school board officials informed the coach that he could continue to deliver his inspirational speeches after games, but they must remain secular. Although students could pray, he could not. Despite this, a month later Kennedy resumed his prayers. He announced his plans to do so, and was joined by players, coaches and parents, while reporters watched.
The Bremerton School Board proposed adjustments to allow the coach to pray more privately, which he rejected. At the end of October, officials released him on paid leave for violating their directive, and eventually chose not to renew his one-year contract. He filed a lawsuit in August 2016.
Judgments of the trial court
The coach’s claim raised two main allegations – namely that the school administration violated his rights to freedom of expression and religion. However, the Ninth Circuit twice rejected Kennedy’s claims, in 2017 and 2021, leading to his appeal of the second case to the Supreme Court.
The Ninth Circle rejected Kennedy’s claim that he had the right to freedom of private expression on the ground, arguing that since he was a public servant, reasonable observers could assume that his prayer had received the support of the board. In particular, the court found that he acted as a public servant, and not as a private citizen. The court did explain that educators are free to demonstrate their faith in their own time, for example when Kennedy sat in the stands as a fan during a game after being suspended.
With respect to Kennedy’s religious freedom claim, the court was pleased that the school council’s restrictions on its activities meet a well-established principle: public officials must demonstrate a compelling government interest before they can restrict someone’s fundamental rights, such as religious freedom, and restrictions must be narrowly adjusted. To achieve this interest.
Here the court accepted the position of the board of directors that it has a binding interest in avoiding a breach of the incorporation clause. In this ruling, the court balanced the tension between the constitutional rights and religion, and from religion – the free exercise clause and the establishment clause, respectively.
The Ninth Circle also rejected the coach’s claims under Title VII of the Civil Rights Act of 1964, which prohibits discrimination at work on the basis of race, religion, sex, or national origin. The court also did not accept his allegations that the board failed to respond to him, or that officials retaliated by failing to renew his contract.
In its analysis, the Supreme Court may consider whether the coach risked sending the message that he was acting with the approval of the school administration, as a form of protected speech, or whether his prayers were unprotected private speech.
In addition, the court may address the question of whether Kennedy did not act as a role model, as expected of educators. The courts have consistently agreed that school staff who work with students waive certain rights by virtue of their duties. For example, the Seventh Circle confirmed that a school board in Indiana could fire a teacher who violated its policy by not remaining neutral about current classroom events.
As in Kennedy, boards can choose not to renew the contracts of employees who violate their policies. But so far, public servants in office who have ignored their employer’s legal policies have not been able to claim that they are exercising their rights to freedom of religion or expression as protection. It remains to be seen whether the court will recognize that educators cannot ignore legal guidelines at work, to avoid over-influencing their students, or whether judges will open the door to giving teachers greater freedom of expression.
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As is often the case in media disputes, the Supreme Court is expected to rule in late June or early July. While the case is unlikely to end disagreements over public servants ’prayers as freedom of expression, in my opinion, judges will probably go on a fine line in balancing the interests of educators who want to pray at work and school committees seeking to avoid violating the constitution.