In its Kennedy v. Bremerton School District decision, the U.S. Supreme Court has made a bold move that seems to disregard established precedent and leaves school district administrators and boards puzzled as to how best to handle freedom of religion in the school setting.
Joseph Kennedy, a storied football coach at Bremerton High School in Washington State, knelt at the 50-yard line after each football game. Early on, students asked what he was doing. According to the Court, Coach Kennedy “made it a practice to give ‘thanks through prayer on the playing field.’” Over time, some students asked to join him. He told them they could do what they wished and many did. This persisted for some time. Eventually concerns were raised, and Coach Kennedy was requested to stop. The school offered various accommodations which would allow him to continue his prayer but in a manner that did not appear to coerce student athletes or seem to be school sponsored. Coach Kennedy continued. Ultimately, he was placed on leave from coaching and not rehired as a coach. He sued, claiming these actions violated his First Amendment rights to freely exercise his religious beliefs.
The questions presented to the Court were:
- Whether a public school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection.
- Whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise Clauses, the Establishment Clause nevertheless compels public schools to prohibit it.
SCOTUS ruled that the school violated Coach Kennedy’s free expression rights when it did not rehire him. The Court seemed to apply a somewhat different analysis reaching this conclusion.
For decades the court has applied what is known as the Lemon Test to determine whether an action violates the establishment clause of the First Amendment. The Court devised the constitutional test in Lemon v. Kurtzman (403 US 602 (1971)), deciding that in order for a statute to be constitutional, and not violate the Establishment Clause, the law or public action must (1) have a secular purpose, (2) not have promoting or inhibiting religion as its primary effect, and (3) avoid an excessive entanglement with religion. Over the years, the Lemon test has been applied to decide whether public employee action is acceptable or if it violates the Establishment Clause. Bright lines have never fully been drawn; but, for example, reading a prayer before a public meeting is deemed to violate the Lemon Test due to the appearance of promoting a religion.
The Bremerton Court did not apply Lemon. It insisted that Coach Kennedy had the right to pray on the field immediately after games and that to restrict that practice, including by not rehiring him, amounted to an invasion of his right to the free exercise of his religion. This, it said, is grounded in “‘historical practices and understandings.” In a remarkable ruling, the Court noted: “The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”
Reaching its conclusion, the Court ignored the Lemon Test; and, as the dissent pointed out, years of jurisprudence permitting reasonable restrictions on proselytizing on school grounds. The decision was unprecedented in light of most of the Establishment Clause and Free Exercise cases.
Amicus on the case, including the ACLU, urged the Court that it must not allow Coach Kennedy’s actions. It was clear he was working when the post-game prayer occurred and thus the First Amendment would not protect that activity. Additionally, as the Court has ruled so frequently in the past, the school must act to address concerns about the coach’s conduct on students and others at school.
Does Bremerton give us new law? Possibly. But the three-part Lemon test remains a valuable method of analysis in this space, especially as this area of the law continues to settle. In the meantime, schools should continue to carefully advise and caution staff about infusing religion into their actions while at school.
Please contact Douglas Gerhardt or the attorney with whom you typically work for further guidance on this decision.
This alert is not a substitute for advice of counsel on specific legal issues.
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