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. 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.
 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.