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The Supreme Court ruled in Kennedy v. Bremerton School District on June 27, 2022 that a public high school violated the Constitution by restricting a football coach from engaging in personal but overt post-game, mid-field prayers while still on duty. What is the practical impact of the Kennedy decision on public school districts? The opinions 70-plus pages of dense debate over nearly a century of First Amendment jurisprudence is complex and often confusing. But the opinion has potentially sweeping implications not only for religious expression in schools, but also the day-to-day supervision and management of school employees. To help simplify the issues, we have pulled from the Kennedy decision four key questions it should prompt for all school administrators gearing up for another school year.

In 2008, coach Joseph Kennedy established a regular post-game ritual of praying aloud while kneeling at the 50-yard line of the school football field. Students began joining Kennedy while he prayed, and eventually a majority of them regularly participated, prompting Kennedy to incorporate motivational speeches with overtly religious references.

Kennedy and the school district disagree about the evolution of his prayer ritual and the extent to which it involved students. Despite Kennedys claims that the expression was private and personal, the record indicates that what may have begun as a solo moment of quiet prayer evolved into Kennedys directing demonstrative center-stage prayers and religion-infused pep talks while surrounded by kneeling students with their helmets raised skyward.

In September 2015, the Bremerton School District instructed Kennedy to discontinue his post-game prayers, asserting they violated the establishment clause of the First Amendment, which prohibits state establishment of religion. Kennedy kept on praying, so the district put him on paid administrative leave and did not rehire him for the next season. Kennedy sued the school district, alleging it violated his First Amendment rights to free speech and free exercise.

In a sweeping decision that sidesteps widely held church-state separation concerns regarding prayer in school, the Supreme Court ruled in Kennedys favor.

What exactly did the Court rule?

(Very) simply put:

In short, a public school cannot prohibit an employee from engaging in workplace personal and private religious expression, even when the expression also is overt and public.

How were these prayers personal and private? Didnt this happen at the 50-yard line?

The Court characterized Kennedys prayer ritual as private and personal because (1) students were not required to participate; (2) it was not conducted in his capacity as a coach; (3) it was quiet; and (4) even though students routinely joined him, Kennedy said he was willing to pray in the absence of students.

The Court was not persuaded by the demonstrative nature of Kennedys prayers or the media attention they attracted some of which Kennedy appears to have invited himself. Nor did it matter that Kennedy prayed while on duty and still in his school uniform, and in the middle of school events widely attended by students and the community. According to Justice Gorsuch, who wrote the Courts majority opinion, these facts made the prayers noticeable but still personal and private not unlike a Muslim teacher [] wearing a headscarf in the classroom or a Christian aide []praying quietly over her lunch in the cafeteria.

How do we know what religious activities are allowed in public schools?

Before Kennedy, in-school religious activity was not allowed (because it violated the establishment clause) if it could reasonably be interpreted as a school endorsement of religion, or if it tended to coerce student participation in religious activity. In Kennedy, the Supreme Court rejected the traditional endorsement and coercion tests in favor of an analysis focused on original meaning and history and reference to historical practices and understandings.

The new history-and-tradition standard offers very little practical guidance to schools, at least until the lower courts more routinely apply the Kennedy holding to real-world facts. For now, Kennedys extension of constitutional protection of school religious activity is limited to private religious expression that is non-mandatory for students and conducted outside the scope of the employees job functions. There is nothing in the decision that suggests mandatory student prayer is newly protected.

While religious activity that obviously pressures or coerces student participation likely will remain off-limits, Kennedy suggests that only certain types of coercive conduct rise to the level of triggering an establishment clause violation. After all, in Kennedy, Gorsuch discounted evidence that some students felt pressured to attend Kennedys post-game prayers out of fear of retaliation, writing, [l]earning how to tolerate public prayer is part of learning how to live in a pluralistic society. In other words, suck it up.

In the immediate term, schools would be wise to think twice before restricting employees from engaging in private religious expression at school, especially while outside the classroom, during non-working time and/or in non-student-facing settings. Whether in-school religious expression is private will depend on the facts at issue, but the Kennedy decision suggests a broad definition that does not depend on whether students and/or the public are merely exposed to the religious activity.

Does this case change how and when schools can regulate non-religious employee expression?

Maybe. Under current precedent, a public employees speech in their official capacity is not entitled to First Amendment protection and thus is subject to regulation by the employer. In the public school context, this has meant that school districts can put limits on the speech of teachers and coaches when they are speaking in the context of their job duties. In Kennedy, the Court deemed Kennedys prayers protected from school regulation because they occurred outside the scope of his employee responsibilities as a coach, and thus personal speech.

The holding certainly suggests that teachers and other school employees are entitled to broader leeway in expressing their personal views while at work as long as the expression falls outside their normal job functions. Presumably this still means that a school can restrict a teacher from incorporating their personal views religious or otherwise into formal classroom instruction. But if Kennedy moments after the end of a game, while still working and in uniform, and in the middle of the football field was not praying in his capacity as a coach, where exactly are the boundaries of official capacity? Is anything outside a formal class period also outside a teachers official capacity? Must schools now permit employees to express views inconsistent with school positions in all other areas of the school for example, while eating lunch among students in the cafeteria or when passing in the hallway?

Once again, its not clear. However, schools should tread more carefully when regulating employee conduct in school areas generally reserved for employees to spend non-class or non-working time. The appropriateness of employee messages and/or displays in hallways and/or other student-traveled school areas likely will be more nuanced and require careful analysis by districts. For example, in Weingarten v. Board of Education, a federal court in New York ruled a district could prohibit teachers from wearing political campaign buttons on school grounds but must allow them to distribute campaign material in teacher mailboxes and on union bulletin boards. Under Kennedy, prohibiting campaign buttons everywhere on school grounds may no longer pass constitutional muster given the Court deemed Kennedy outside his role as a coach even though he was on-duty and physically on the football field where he primarily worked. It remains to be seen where such boundaries lie, but Kennedy counsels districts proceed with caution on similar issues until we have more clarity.

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Clear as Mud: Navigating In-School Employee Expression in the Wake of Kennedy v. Bremerton School District - JD Supra