Last Monday, the Supreme Court of the United States heard oral arguments in the case of Kennedy v. Bremerton School District, which asks whether it is constitutional for school employees to pray on school grounds, at a school event, with students and other members of the school community present.

The landmark case on school prayer, Engel v. Vitale, 370 U.S. 421 (1962), concluded that the First Amendment protections against enacting a law “respecting an establishment of religion” prohibited state officials from composing an official state prayer and requiring that it be recited at the beginning of the school day. The court reached this conclusion even though the prayer in question was non-denominational and students could either remain silent or be excused from the classroom while the prayer was being recited.

In an opinion resolving the parents’ challenge to the state’s prayer, the supreme court began by reviewing the early history of the colonies that became the United States to examine the intent of the framers of the Constitution. The court stated: “The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayers the American people can say—that the people’s religions must not be subjected to the pressures of government for change each time a new political administration is elected to office.” Numerous cases have followed, examining the issue in a variety of fact patterns, and have reached essentially the same conclusion.

In the Kennedy case currently before the supreme court, a high school football coach would go to the center of the football field after games, while students were still on the sidelines and spectators in the stands, and pray. Soon, students were joining him on the field. The district asked him to stop praying in that setting and offered him another location to do so. Although he initially acceded to this request, Kennedy eventually returned to the field to pray. After the next game, while Kennedy and student athletes were praying, the spectators rushed onto the field, knocking over members of the school’s marching band. The school principal became concerned about student safety and the district placed Kennedy on leave. The coach chose not to reapply for the coaching position and later challenged the district’s actions on the basis that they were a violation of his First Amendment freedoms of speech and religion.

While the coach's speech in this case was prayer, the outcome of the case more broadly may affect a school district’s authority to discipline school employees for engaging in speech during the exercise of their public duties. Currently, the supreme court’s guidance is that, when a person becomes a public servant, “the citizen by necessity must accept certain limitations on his or her freedom.” Garcetti v. Ceballos, 547 U.S. 410 (2006). “When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” This guidance may be altered by the decision in Kennedy

The court is expected to issue its decision in Kennedy in June. Interested readers can listen to the oral arguments in the case here. The division of legal services will follow this case and provide more information after that decision becomes available.

Posted by Jennifer A. Hardin on 5/2/2022