Even when the U.S. Supreme Court declines to take up a case, one or more justices can send a signal that the issues involved are important and that perhaps the court would grant review under the right circumstances.
That’s what happened with Kennedy v. Bremerton School District, in which the high court on Jan. 22 declined to hear the appeal of a high school football coach who was dismissed by his Washington state school district for praying on the field immediately after games.
The court declined the coach’s appeal after nearly two months of consideration at its closed-door conferences. But four justices signaled that they were troubled by the coach’s dismissal and the handling of his case by two lower courts. They signed an opinion that said unresolved factual questions made the appeal unsuitable for high court review, for now.
The opinion by Justice Samuel A. Alito Jr., also signed by Justices Clarence Thomas, Neil M. Gorsuch, and Brett M. Kavanaugh, raised questions about how those four would interpret two Supreme Court precedents that have been widely felt in education, one dealing with First Amendment protection for public employee speech and the other involving free-exercise-of-religion claims raised against government policies.
“I think Alito’s statement opens lots of doors, both in this case and in other cases, inviting opportunities to revisit issues that perhaps we thought were settled,” said Ann E. Blankenship Knox, an assistant professor of education at the University of Redlands in Redlands, Calif., who writes frequently about school law issues. “For a denial, they’re giving us quite a bit to deal with.”
The Supreme Court’s action came in the case of Joseph A. Kennedy, a coach at Bremerton High School in Bremerton, Wash., who contends that he has First Amendment free-speech and free-exercise-of-religion rights to express his faith while on the job.
Kennedy was the assistant varsity football coach and the head coach of the junior varsity team at Bremerton High in the fall of 2015 when his post-game prayers became the center of controversy.
Kennedy was sometimes joined by players for his post-game prayer, and he would sometimes give short motivational talks.
In September 2015, Bremerton district officials advised Kennedy that he could continue to give inspirational talks, but could not lead or encourage student prayers. The superintendent informed Kennedy that he was free to pray while on the job if it did not interfere with his job responsibilities and as long as it was “non-demonstrative” when students were engaged in nearby voluntary prayers.
The coach complied for several weeks, but sought an accommodation from the district to continue his post-game prayers. The school district rejected his argument that his job responsibilities ended when the football game did.
When the coach continued to pray at the end of two more games, the district placed him on administrative leave. Kennedy did not seek the renewal of his year-to-year contract the next season.
The coach sued the school district in 2016, seeking reinstatement as a coach and a ruling that he had the right to pray on the field after games.
A federal district court denied a preliminary injunction for Kennedy. In 2017, a unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, also ruled against the coach. The appeals court held that Kennedy was speaking as a public employee and not as a private citizen when he prayed on the field.
“Kennedy spoke at a school event, on school property, wearing [Bremerton High School]-logoed attire, while on duty as a supervisor, and in the most prominent position on the field, where he knew it was inevitable that students, parents, fans, and occasionally the media, would observe his behavior,” the 9th Circuit court said.
‘Troubling’ Opinion Below
The Supreme Court considered Kennedy’s appeal privately for more than two months. The court’s denial of review and the statement by the four justices suggests a fair amount of internal debate over the case.
Alito, in the statement joined by his three colleagues, said the key question was whether Kennedy showed he was likely to prevail on his free-speech claim. But the federal district court that heard the case did not make a specific finding about the reason for Kennedy’s termination, Alito said, and the 9th Circuit panel “was even more imprecise on this critical point.”
“We generally do not grant such review to decide highly fact-specific questions,” Alito said. “Here, although [Kennedy’s] free-speech claim may ultimately implicate important constitutional issues, we cannot reach those issues until the factual question of the likely reason for the school district’s conduct is resolved. For that reason, review of [Kennedy’s] free-speech claim is not warranted at this time.”
In the section of the statement that is prompting debate in school law circles, Alito went on to say that the 9th Circuit’s “understanding of the free-speech rights of public school teachers is troubling and may justify review in the future.”
Alito said the appeals court applied a key 2006 Supreme Court decision on public-employee speech rights, Garcetti v. Ceballos, in a way that would allow school districts to fire teachers and coaches “if they engage in any expression that the school does not like while they are on duty, and the 9th Circuit appears to regard teachers and coaches as being on duty at all times from the moment they report for work to the moment they depart, provided that they are within the eyesight of students.”
That means schools could bar teachers from folding their hands or bowing their heads in prayer at lunch, if the teachers were visible to students, Alito wrote.
Michael Berry of the First Liberty Institute, a Plano, Texas-based legal organization that is helping to represent the coach, said he found Alito’s statement “encouraging” but that he was “unwilling to read too much into it.”
The lawyer representing the Bremerton school district did not respond to a request for comment.
Blankenship Knox of the University of Redlands, who is co-writing a law review article about the Kennedy case, said she found Alito’s discussion of the Garcetti decision and how it was interpreted by the 9th Circuit provocative. She noted that Alito was a member of the majority in the decision, which held that public employees did not have First Amendment protection for on-the-job speech that was related to their duties.
Alice O’Brien, the general counsel of the National Education Association, said the real test for the high court’s conservative justices will be whether they see as much First Amendment protection for public employees expressing certain ideological views as they seem to view for those employees seeking to express their religion in the workplace or to avoid paying union service fees to which they object.
“For example, would the [justices] be as solicitous of a football coach taking a knee to protest the murder of young black men as they are of a coach praying on the field?” O’Brien said via email.
‘Drastically Cut Back’
While Alito gave legal experts plenty to chew on over interpretations of Garcetti, his statement contained another bombshell of sorts.
Alito wrote that the coach’s focus on his free-speech claim over his free-exercise-of-religion claim “may be due to certain decisions of this court,” including the Supreme Court’s 1990 decision in Employment Division, Department of Human Resources of Oregon v. Smith. In that ruling, the court cast aside a long-prevalent “strict scrutiny” test for evaluating government action that infringed the free-exercise-of-religion guaranteed in the First Amendment.
In Smith, a case in which the state of Oregon denied unemployment compensation to American Indian counselors who had ingested the hallucinogen peyote as part of their religious rituals, the court said government actions that infringed on religious exercise need only be justified under an easier-to-meet rational-basis test.
Alito said that the court in Smith had “drastically cut back on the protection provided by the free-exercise clause.” (He also mentioned a separate statutory decision of the high court that may also be problematic.)
“Of course, simply because Alito mentioned those two cases does not mean that the court would vote to overturn them,” Joshua Dunn, a political science professor at the University of Colorado-Colorado Springs, wrote in his school law column in the journal Education Next. “But the very act of mentioning them indicates that it is on their minds.”
Alex Luchenitser, the associate legal director of Americans United for Separation of Church and State, said he was troubled by Alito’s statement and the support it seems to show for allowing public employees greater latitude to express their religious beliefs on the job.
“It seems that Alito wants to roll back Garcetti in some way and find some safe harbor for religious speech,” said Luchenitser, whose group filed a brief on the Bremerton school district’s side in the 9th Circuit.
On the free-exercise clause, he said, “We would be very concerned that any attempt to overrule Employment Division v. Smith would pave the way to sue under the free-exercise clause to override state and local anti-discrimination laws, including laws protecting students based on sexual orientation and transgender status.”
Berry, of the First Liberty Institute, said Alito’s mention of Employment Division v. Smith “raised some eyebrows in the legal community,” but he doesn’t think it necessarily means the Supreme Court would overrule the nearly 30-year-old decision if given the chance.
“For educators who are going to be reading the tea leaves on this, I would say stand by,” Berry said. “There may be more to come on this.”
A version of this article appeared in the February 13, 2019 edition of Education Week as Reading High Court’s Tea Leaves in Denial of On-Field Prayer Case