Kennedy v. Bremerton School District is the culmination of 60 years of fears about religious coercion by public schools.
Six decades ago, in Engel v. Vitale (1962), the Supreme Court held that the state may not pressure schoolchildren to pray in a particular way. “One of the greatest dangers to the freedom of the individual to worship in his own way,” Justice Hugo Black wrote for the Court, “lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.”
This basic premise — that government employees should not elevate one kind of faith or religious practice over another — is at stake in Kennedy v. Bremerton School District, which the Supreme Court will hear in late April.
The case involves Joseph Kennedy, a former football coach in Bremerton, Washington. For years, Kennedy incorporated “motivational” prayers into his coaching. Eventually, these prayers culminated in public sessions after games, where players from both teams would kneel around Kennedy as he held up helmets from both teams and led students in prayer.
Kennedy also engaged in other overt performances of his religion while he was coaching public school students. After each game, while players and spectators were still present, Kennedy would walk out to the 50-yard line, kneel, and pray. Initially, he did this alone, but after a few games students started to join him — until eventually a majority of his players joined him as well.
The school initially tried to work with Kennedy to find ways to accommodate his religious convictions, but eventually placed him on leave after he stopped cooperating — and after one of his prayer sessions inspired a crowd of people to rush the field, knocking over members of the marching band and potentially endangering students.
The Supreme Court’s decisions interpreting the First Amendment ban on “an establishment of religion” have, at times, relied on different frameworks to determine if this ban is violated. Legal scholars refer to these competing frameworks by names such as the “endorsement test” or the “coercion test.”
Under the first framework, Justice Sandra Day O’Connor wrote in 1984, government actions that endorse a particular religion or religious belief are disfavored because such endorsements send “a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”
Under the latter framework, endorsements are sometimes permitted, but not if they coerce individuals into a religious exercise. The Court’s decision in Lee v. Weisman (1992), moreover, suggests that school-sponsored religious activities are inherently coercive — both because of the power school officials wield over students, and because of the peer pressure facing young people who visibly refuse to participate.
In a 2006 opinion, Justice Stephen Breyer appeared to propose a third framework, arguing that the establishment clause of the First Amendment must be interpreted to prevent “divisiveness based upon religion that promotes social conflict.”
There are important differences among these frameworks. The endorsement test, for example, disfavors many governmental displays of religious symbols that are permitted under the coercion test. But Kennedy’s actions violate any of these competing legal tests. He endorsed a religious viewpoint while acting as a representative of the school district. His actions pressured students into joining him in a religious activity. And he appears to have actively stoked religious divisions.
Kennedy should not be a hard case. It is well established that school officials cannot use their official government position to pressure students into religious exercise.
Or, at least, it is well established for now that school officials cannot do this. Three years ago, during an earlier phase of the Kennedy litigation, a total of four justices joined an opinion by Justice Samuel Alito, which suggested that the school district violated Kennedy’s constitutional rights by denying him the free speech right to pray while at work.
The Court has only grown more conservative since then, and it has treated “religious liberty” cases brought by conservative Christian litigants as its highest priority since Republicans gained a supermajority on the Court in 2020.
There is a very real risk, in other words, that the Court could use this case to upend 60 years of established law.
Coach Kennedy turned his public school’s football games into a culture-war battlefield
As mentioned above, Kennedy spent much of his coaching career behaving like a preacher, holding public prayer sessions for students — many of whom Kennedy wielded authority over. And, while there’s no evidence that he ever ordered a student to kneel with him when he performed a religious ceremony on the 50-yard line, he did not discourage students from joining him, either, and a majority of the students on his team eventually did so.
At least some students felt pressured to participate in these prayer sessions, even though they did not share Kennedy’s religious beliefs. One parent eventually complained to the school district that his son “felt compelled to participate,” despite the fact that he is an atheist, because the student feared “he wouldn’t get to play as much if he didn’t participate.”
The school district first learned about Kennedy’s behavior in September of 2015, when an opposing coach spoke to the high school principal about it. After an investigation, school district superintendent Aaron Leavell ordered Kennedy to stop using his position as a public school employee to preach religion.
Though Kennedy was allowed to continue giving motivational speeches to students, Leavell told him that “they must remain entirely secular in nature, so as to avoid alienation of any team member.” Kennedy could also continue to pray after games, but his prayers “must be physically separate from any student activity” and “such activity should either be non-demonstrative (i.e., not outwardly discernible as religious activity) if students are also engaged in religious conduct, or it should occur while students are not engaging in such conduct.”
Initially, the coach complied. But he soon unleashed a coordinated legal and PR campaign against the school district. About a month after the superintendent ordered Kennedy to stop preaching religion to his students, Kennedy’s lawyer informed the school district that the coach would resume praying at the 50-yard line immediately after games.
What followed was a circus. Kennedy went on a media tour presenting himself as a devout coach who “made a commitment with God” to performatively pray after each game. Good Morning America did a segment on him. Conservative media ran with headlines like “High School Coach Bullied Into Dropping Prayer at Football Games.” By the end of the month, 47 members of Congress — all Republicans — wrote to Leavell in support of Kennedy.
At the conclusion of the next game, coaches, players, and members of the general public mobbed the field when Kennedy knelt to pray. A federal appeals court described the rush of people onto the field as a “stampede,” and the school principal complained that he “saw people fall” and that, due to the crush of people, the district was unable “to keep kids safe.” Members of the school’s marching band were knocked over by the crowds.
Eventually, the school placed Kennedy on leave, and Kennedy did not reapply for his coaching position the next year. But he did sue, claiming that he has a constitutional right to say “a quiet prayer by himself at midfield after” football games where he is a coach.
For what it’s worth, Kennedy does appear to have made some concessions to the establishment clause. His brief to the Supreme Court largely asserts a right to say a post-game prayer on the 50-yard line, not a right to hold “motivational” prayer sessions surrounded by public school students.
But Kennedy is still claiming that he had a right to make a public performance of his own religious beliefs, while he was very visibly acting as a representative of a public school district, and in full view of a crowd of students, parents, players, and spectators.
Under existing law, that’s not allowed.
Kennedy’s actions obviously violate the Constitution
In Engel, the 1962 school prayer case, the Court offered a historical account of why government officials should not promote a particular method of prayer.
In the mid-16th century, the English Parliament approved the Book of Common Prayer, which “set out in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the established, tax-supported Church of England.” This led to perpetual lobbying, and frequent strife, over just what prayers the government should endorse and which ones it should reject. Powerful religious groups “struggled among themselves to impress their particular views upon the Government,” while less powerful religious believers literally fled the country — many of them becoming early American colonists.
According to Engel, the First Amendment was drafted in large part to ward off this kind of strife among religious factions. The founding generation, Justice Black wrote, were not willing “to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box.”
Alternatively, several justices have warned against government endorsements of religion. As Justice O’Connor warned in her 1984 concurring opinion, such endorsements undermine the basic liberal democratic notion that all citizens enjoy equal political standing. They tell “nonadherents that they are outsiders, not full members of the political community” while simultaneously telling “adherents that they are insiders, favored members of the political community.”
Then, in Lee v. Weisman (1992) a majority of the Court embraced a third reason why schools should not pressure students into religious exercise: because school-sponsored religious activity is inherently coercive. In Lee, a public middle school invited a rabbi to open and close the school’s graduate ceremony with prayers. This melding of government and faith, according to Justice Anthony Kennedy’s majority opinion, was not allowed — at least in the context of a school.
“The undeniable fact,” Justice Kennedy added, “is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction.” Such pressure, “though subtle and indirect, can be as real as any overt compulsion,” as it leaves a young nonadherent with “a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow.”
Kennedy’s very public prayer violates any of these constitutional standards. It was an inherently divisive act, which rallied members of the public — and members of Congress — who share Kennedy’s faith into a disruptive conflict with the school itself. It communicated to non-Christian community members and students that they were less a part of the Bremerton community than people who share Kennedy’s faith. And it coerced football players who may not share Kennedy’s religious beliefs into joining his prayers, out of fear that they may anger a school official who wields considerable authority over them.
In the face of these arguments, the coach’s legal team attempts to flip this case on its head, presenting it not as a dispute about whether a school official violated the rights of nonbelievers, but as a case about whether the school violated Kennedy’s free speech rights and his right to practice his faith.
This claim turns on whether Kennedy was acting as a private citizen when he performed a religious ceremony on the 50-yard line, in full view of players and spectators, or whether he was acting as a representative of the school district when he did so.
Public employees retain broad free speech rights when they are not performing their official duties, and a public school teacher or coach should also be allowed to engage in ordinary acts of religious devotion while on the job — such as bowing their head before lunch or quietly asking for God’s blessing before a game — so long as those acts do not suggest that the school district is itself expressing a religious viewpoint.
But the Supreme Court has also long recognized that “when a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” As the Court held in Garcetti v. Ceballos (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.”
There’s no reasonable question that Kennedy was engaged in his official duties when he knelt before his players and the gathered spectators in a public display of prayer. For one thing, as the school district emphasizes in its brief, Kennedy was only allowed on the football field in the first place because he was a school employee performing official duties. And as a federal appeals court held, Kennedy was selected by the school district specifically to “teach on the field, in the locker room, and at the stadium.”
Thus, when Kennedy walked out to the 50-yard line to performatively pray, “he was clothed with the mantle of one who imparts knowledge and wisdom,” and he was clothed in this mantle specifically because of his employment by the school district. The whole point of Kennedy’s prayer was to wrap himself in the moral authority given to him by the school district, and to use this authority to convey a religious message.
Kennedy could win anyway
Given that existing law so clearly favors the school district in the Kennedy case, the Supreme Court’s decision to hear this case at all suggests that a majority of the justices are eager to change the law to make it more favorable to government-sanctioned religious activity.
For one thing, when the case reached the Supreme Court in 2019, a total of four justices signed on to Alito’s opinion claiming that a lower court that ruled against Kennedy demonstrated an “understanding of the free speech rights of public school teachers [that] is troubling and may justify review in the future.”
Alito appeared unconcerned that a school official might wield his authority to pressure students into religious exercise. Instead, he fretted that coaches should not be told that their “duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith.”
Less than two years after Alito wrote these words, Justice Ruth Bader Ginsburg died, and she was replaced by conservative Justice Amy Coney Barrett. Almost immediately after Barrett’s confirmation gave Republicans a supermajority on the Supreme Court, the Court’s new majority started handing down transformative new religion decisions granting broad new rights to the religious right.
Thus, while the weight of established law should crush Kennedy’s case, the biggest open question in Kennedy is most likely to be just how much leeway the Court will give public school teachers and coaches to preach their religious beliefs to their students.
Author: Ian Millhiser
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