Earlier this week, the U.S. Supreme Court issued an opinion in the case Kennedy v. Bremerton School District. The case involved a high school football coach who lost his job after he knelt at midfield after games to pray. The coach sued the district for the disciplinary actions it took against him, alleging that the district’s actions violated his rights under the First Amendment to the U.S. Constitution.

The First Amendment, in fewer than 50 words, contains important protections to citizens including freedom of speech, free exercise of religion, freedom of the press, and the rights to peaceably assemble and to petition the government for redress of grievances. It also prohibits any governmental entity from making any “law respecting an establishment of religion.” The Bremerton School District’s actions regarding the coach were based on its concern that allowing him to continue to pray on the field after games would violate the First Amendment establishment clause.

Here are some important aspects of the Kennedy decision:

  • Kennedy doesn’t change the fact that school employees are, and have been, protected by the First Amendment. As the court has long stated, and reiterated in Kennedy, school employees do not shed their constitutional rights to freedom of speech at the schoolhouse gate. 
  • Boards could and still can regulate employee speech provided that the regulation is neutral and generally applicable. When determining whether to regulate employee speech, the district should consider whether the speech involved a matter of public concern and whether the speech was within the scope of the employee’s duty. Kennedy, however, clarifies that everything a school employee says is not within the scope of his or her duties and all speech in the workplace is not subject to government control. 
  • The decision alters the legal analysis of how and when the conduct of schools and school employees violates the First Amendment establishment clause. The district in this case relied on a test developed in 1972 by the Supreme Court in Lemon v. Kurtzman. The Kennedy decision states that the Supreme Court has abandoned the Lemon test. In its place, the court states that governments, including districts, must interpret the establishment clause based on historical practices and understandings.
  • The decision did not change prior holdings that governments, including districts, cannot make religious observance compulsory, coerce anyone to attend church, or force citizens to engage in formal religious exercise. The Kennedy decision noted prior Supreme Court decisions that there are some situations where prayer involving public school students can be “problematically coercive.” It noted those situations included prayer that is broadcast over a public address system to students who are a “captive audience” or prayer in which students are required or expected to participate, such as prayer publicly recited at an official school graduation ceremony that students are compelled to attend. It concluded that the private prayer of a coach does not result in a violation of the establishment clause provided that the prayer is not publicly broadcast or recited to a captive audience, there is no formal school program accommodating the religious activity, and students are not required or expected to participate.

What should districts be doing in light of the Kennedy decision?

  • Reviewing board policies and practices to ensure that they do not prohibit “private religious speech.”
  • Consulting with the district’s legal counsel and policy provider if they have specific questions about how their district and its policies and practices are affected by the decision. 

OSBA’s legal division is available to answer questions about Kennedy and prior decisions on religious observances by school employees. Please contact to the division at (855) OSBA-LAW or (855) 672-2529 and we’ll be happy to help.  

Posted by Jennifer A. Hardin on 7/1/2022