The U.S. Supreme Court is weighing whether prayers at the 50-yard line by former high school football coach Joseph A. Kennedy were protected by the free speech and free exercise of religion clauses of the First Amendment. At issue is whether the Bremerton, Wash., school district could regulate the coach’s religious expression because he was on the job or his prayers might appear to be endorsed by the district or coerce students to participate.
Education Week covered the April 25 arguments here, but there’s still plenty to unpack from more than an hour and a half of back and forth in the case of Kennedy v. Bremerton School District.
The justices seemed to agree that the facts are complicated
There is a long chronology of events, especially involving games in the fall of 2015 when Kennedy took a knee at the 50-yard line right after the game. There are factual disputes about exactly what occurred at some of these games, as well as over the Bremerton school district’s sometimes-shifting rationales for its attempts to rein in the coach’s prayers.
“One of my problems in this case was the parties seem to have different views of the facts,” Justice Stephen G. Breyer said during the argument. “This may be a case about facts and not really much about law.”
Justice Samuel A. Alito Jr. said, “Forget about all of the complicated facts of this case,” then offered a series of simpler hypotheticals, including a coach who prays on the 50-yard line without inviting attention, a coach who waves a Ukrainian flag to protest the Russian invasion, or a coach who kneels to make a statement about climate change or racial unrest.
One side’s lawyer highlighted some key friend-of-the-court briefs
There are 36 friend-of-the-court briefs filed in support of Kennedy and 21 filed in support of the school district. (Almost all of those have multiple groups or individuals signing on to them.)
During the argument, Richard B. Katskee, the lawyer representing the Bremerton school district, mentioned three of the briefs supporting the district. One was filed by AASA, the Superintendents Association, and other administrator groups. That brief argues that Kennedy’s prayers were disruptive and that such expression by educators undermines the educational mission of schools.
Katskee also cited a brief filed by members of the Bremerton community offering their views on the coach’s activities and another filed by a former superintendent and a teacher in a New Jersey school district that had experienced a similar controversy involving a praying football coach in the mid-1980s.
Paul D. Clement, the lawyer representing Kennedy, did not cite any of the briefs supporting the coach during his argument time. He returned again and again to the complicated record to stress that Kennedy only sought to engage in a private prayer and was not responsible for the participation or reactions of others.
The issue of whether the person praying was seeking to be the ‘center of attention’
Justice Brett M. Kavanaugh asked Katskee whether a coach could make a sign of the cross on the field. “If the coach is doing it while not making himself the center of attention at the center of the field, it’s perfectly fine,” Katskee replied.
Kavanaugh said, “I don’t know how we could write an opinion that would draw a line based on not making yourself the center of attention as the head coach of a game.”
Clement later agreed, pointing out that soccer and football stars such as Mohamed Salah and Tim Tebow engage in religious exercise right after they score, when they are the center of attention in a sports arena.
“It’s private, it’s permissible, and the government can’t stop it,” Clement said. (He didn’t mention that neither of those stars are employees of a public school district.)
Clement also argued that Kennedy is “actually not the center of attention, if you look at the videos, which are in the record, because there’s lots of other activity going on.”
Justices seem reluctant to overhaul a precedent on public employees’ on-the-job speech
That ruling was Garcetti v. Ceballos, and the school district relies on it heavily for its arguments that Kennedy was on duty when he conducted his prayers, and thus his religious expression could be regulated.
Some groups on either side of the case suggested in their briefs that the court may want to clarify Garcetti.
“The court should … limit unprotected speech under Garcetti to public-employee speech produced pursuant to an employee’s job duties,” says the brief of 27 states supporting Kennedy.
The American Federation of Teachers and National Education Association, in a brief supporting the school district make their dissatisfaction with Garcetti clear, calling it “unworkable and inadequate.”
“Educators are particularly vulnerable at this very moment,” the NEA/AFT brief says. “State legislatures and local school boards across the country are considering and enacting vaguely worded teaching restrictions that target discussions of race, racism, gender, and American history.”
But there did not seem to be much appetite among the justices to rework Garcetti.
Justice Elena Kagan said, “I think a lot of this Garcetti stuff is … just not getting to the heart of what we care about ... which is coercion on students and having students feel that they have to join religious activities that they do not wish to join.”
Some conservative justices are a bit obsessed with getting rid of the so-called ‘Lemon’ test
The 1971 case of Lemon v. Kurtzman struck down state salary supplements for teachers in religious schools and yielded a three-part test for courts to weigh government action regarding religion. The test asks whether the challenged program had a secular purpose, had the primary effect of advancing or inhibiting religion, or created an excessive entanglement with religion.
“One of the difficulties of this case is getting one’s hands around the district’s rationale [for taking action against Kennedy], and as I understood, it was based on kind of our Lemon endorsement test,” said Justice Neil M. Gorsuch.
The trouble with Gorsuch’s observation is that neither the lower courts in the Kennedy case or the school district actually cite Lemon much, or at all, directly.
But the test continues to be applied by lower courts, and Clement said it has proved to be “a stubborn fruit, and I don’t think just pushing a pencil through it has done the trick.” He went on to say that “school districts continue to make this mistake” in relying on the Lemon precedent to regulate speech, and said that overruling the precedent “would be very helpful.”
