On June 27, 2022, the United States Supreme Court issued a 6-3 decision in Kennedy v. Bremerton School District, No. 21-418 (2022), holding that a public school district violated the First Amendment rights of its high school football coach, Joseph Kennedy, when it suspended and later non-renewed him for praying quietly and without his players at the 50-yard line immediately following games. The Court’s decision concluded that the district’s actions violated both the First Amendment’s Free Exercise of Religion Clause and its Free Speech Clause, and that the violations were not justified by the school district’s interest in avoiding a violation of the First Amendment’s Establishment of Religion Clause.

The majority looked to three incidents when Kennedy walked to the center of the football field following games that he coached, knelt down, bowed his head, and said a prayer. During these incidents, none of Kennedy’s players joined him but players from the opposing team did.[1] After learning of this, the school district sent Kennedy a letter instructing him to avoid any motivational talk with students that included religious expression and explaining that any religious activity must be non-demonstrative – i.e., not outwardly discernable as religious activity. Kennedy then continued to pray alone on the field and, in response, was placed on paid administrative leave, given a poor performance evaluation, and non-renewed for the following season. Kennedy then sued the district, alleging a violation of the Free Exercise and Free Speech Clauses. After Kennedy lost in the trial court and in the U.S. Court of Appeals, the Supreme Court granted his petition for a writ of certiorari.

The Supreme Court reversed the Court of Appeals’ decision, holding in favor of Kennedy. It applied the burden shifting framework typical of First Amendment cases, under which: (1) a plaintiff must first demonstrate an infringement of his rights under the Free Exercise and Free Speech Clauses, and, if the plaintiff does so successfully; (2) the defendant must then show that its actions were nonetheless justified and appropriately tailored. The Court found that Kennedy carried his burden under the Free Exercise Clause because the school district’s actions unlawfully targeted the “religious” character of his speech and were not neutral – i.e., generally applicable as well to secular speech. It pointed out that Kennedy’s activity did not involve leading prayers with the team or before any other captive audience and that, at the school district’s request, he had voluntarily discontinued the school tradition of pre-game and post-game locker-room prayers with students. The Court also found that Kennedy carried his burden under the Free Speech Clause. It ruled that he was not subject to the limitation that applies when public employees are engaged in speech that is part of their duties because he was not “instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the school district paid him to produce as a coach.” Instead, the Court noted that Kennedy’s post-game prayer activity occurred when coaches “were free to attend briefly to personal matters—everything from checking sports scores on their phones to greeting friends and family in the stands.”

Moving to the second part of the test, the Court rejected the district’s argument that allowing Kennedy to pray on the field immediately following each game would implicate the district in a violation of the Establishment Clause. The Court held that the appropriate test was not whether the school district’s toleration of Kennedy’s activity appeared to be an “endorsement” of his practice and an “excessive entanglement with religion”, ruling that this test and its genesis in a 1971 decision by the Court, Lemon v. Kurtzman, 403 U.S. 602, has long been “abandoned.” Instead, the Court decided that the district had no interest implicated by the Establishment Clause because the focus should be on “coercion” of students. It pointed out that there was no evidence “that students felt pressured to participate in these prayers;” that not one student from the school joined Kennedy on any of the occasions for which he was disciplined; and therefore, that none of his players “could have ‘reasonably fear[ed]’ that he would decrease their ‘playing time’ or destroy their ‘opportunities’ if they did not ‘participate.’”

This decision is important for public school districts because it redefines the boundary between an employee’s right to exercise their religious beliefs and the avoidance of conduct that amounts to a violation of the Establishment Clause. The precise contours of this decision in the context of schools are uncertain and remain to be worked out by the federal courts. The same caveat applies to the import of this decision for public employers generally. For example, it can be expected that there will be a number of circumstances that arise in school settings where the element of student “coercion” is not so neatly resolved as in the three incidents selected by the Court for its majority opinion. Likewise, when and how a public employee chooses to engage in religious activity while at work could raise a host of case-specific questions. As application of this decision evolves, public employers will be forced to walk a tight rope with potential constitutional violations looming on either side. Accordingly, it is essential that a public employer faced with these issues seek the advice of counsel in addressing specific incidents.

If you have questions about the content of this update or about implications for your employees, please contact us. We are pleased to assist public employers with potential First Amendment issues.

This update is provided for informational purposes only and should not be considered legal advice.

[1] In the dissenting opinion by three Justices, they asserted that the majority simply ignored evidence in the record of other incidents that had not been used for discipline but during which Kennedy’s own players joined him in prayer.

On April 4, 2022, the Massachusetts Supreme Judicial Court issued a decision in Reuter v, City of Methuen, No. 13121 (2022), holding that an employer who failed to pay a discharged employee for accrued vacation time on the day of her termination, as required by the Wage Act, G.L. c. 149, §148, is strictly liable for treble the amount of the late wages, and not merely trebled interest. In doing so, the SJC rejected the reasoning of a trial court decision, Dobin v. CIOview Corp., Mass. Sup. Ct., No. 2001-00108 (Middlesex County Oct. 29, 2003), which many employers have relied on to argue that wage payments paid after the date they were due under the statute can be properly made if they include trebled interest.

Reuter involved a school custodian who was terminated for just cause. At the time of termination, she had accrued nearly $9,000 in unused vacation time. Even though the Wage Act expressly requires that this accrued, unused vacation is “wages” and must be paid on the date of termination, the City did not make this payment until three weeks after this date. Subsequently, after receiving a demand letter for treble the amount of the late vacation pay plus attorney’s fees, the City paid an amount which represented a trebling of 12% annual interest on the tardily-paid wages. Following a superior court judgment for the City, an appeal was filed and the SJC took the case on direct appeal.

In its decision, the SJC reviewed the express language of the Wage Act, its legislative history, and its purpose to protect employees who often rely on prompt payment of wages to cover basic necessities. The SJC noted that the liquidated damages provision of the Wage Act makes employers strictly liable for treble damages, meaning that the provision applies regardless of the employer’s intent. The SJC reasoned that the Legislature therefore intended that employers, and not employees, bear the consequences of late payments, whether intentional or not. Reasoning that “the statute does not tolerate or in any way condone delay,” the SJC concluded that all late payments must be trebled as damages under the Wage Act.

The consequences of this decision for employers are notable. Employers must pay an employee for all wages, including accrued, unused vacation time, on the day of termination. The alternative is liability for treble that amount. As the SJC noted, this may mean that an employee who has engaged in illegal activity or other misconduct may have to be suspended with pay for a short period of time before termination to allow the employer time to calculate wages and benefits. Obviously, that option is not available for an employee whose employment is terminated for other reasons or who resigns. Frequently, municipalities and school districts encounter practical obstacles of various kinds in dealing with payroll departments regarding prompt compliance with the statute. The consequences should be clearly explained.

If you have questions about the application of this update or related questions, such as the legality of vacation carryover/“use it or lose it” policies, please contact us. We are pleased to assist employers with Wage Act compliance.

This update is provided for informational purposes only and should not be considered legal advice.

On March 18, 2022, the Massachusetts Supreme Judicial Court issued a decision, Lexington Public Schools v. K.S., holding that pursuant to G.L. c. 119, § 39E, the Child Requiring Assistance (CRA) statute, non-attorney school personnel are authorized to file Juvenile Court petitions concerning students. The issue before the court was whether an assistant principal committed unauthorized practice of law when he filed, on behalf of a school district, a petition under the CRA asserting that a twelve-year-old child needed assistance because of his excessive and willful absences.

In April of 2021, a middle school assistant principal and attendance supervisor filed a CRA petition in the Juvenile Court after a twelve-year (12) old child failed to attend school for forty-eight (48) days that school year, and his family had not participated in a truancy prevention program. After the Juvenile Court judge accepted the petition, counsel for the child moved to dismiss the petition on the ground that the assistant principal, as a non-attorney, was engaging in the unauthorized practice of law. The Juvenile Court judge denied the motion to dismiss, reasoning that the Legislature has authorized school officials to file CRA petitions.

Generally, non-lawyers are prohibited from practicing law to protect the public welfare, and courts enjoy broad discretion in defining the practice of law. Nevertheless, courts have traditionally given substantial deference to the views of the legislature on issues of unauthorized practice of law. Under the express language of the CRA, “a school district may initiate an application in [the Juvenile Court] stating that [a] child is not excused from attendance in accordance with the lawful and reasonable regulations of such child’s school…” M.G.L. c. 119 § 39E. Similarly, c. 76 § 20 says “Supervisors of attendance… may apply for petitions under the provisions of section thirty-nine E of chapter one hundred and nineteen.” In Lexington Public Schools, the court found that, in passing these laws, the Legislature intended to allow non-lawyers to apply for CRA petitions and that the Juvenile Court should provide materials to help them during their appearance. Further, CRA proceedings are intended to be relatively informal because, in 2012, the Legislature replaced the children in need of services statute with the CRA with the express goal of making the proceedings “less adversarial.” Accordingly, the Court held that school personnel – as well as parents, custodians, and legal guardians – do not engage in the unauthorized practice of law when they file a CRA petition.

However, the Court declined to go any further than the issue presented and did not provide a precise definition of the practice of law, recognizing the difficulty in doing so. Instead, the court reaffirmed previous holdings that a determination whether an individual’s actions constitute “practicing law” is a fact-specific inquiry.

If you have any questions regarding the filing of CRA petitions, please contact us.  We are pleased to assist school administrators in addressing truancy concerns and navigating the CRA petitions process.

This update is provided for informational purposes only and should not be considered legal advice.