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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

The Reporters Committee for Freedom of the Press is partnering with the Pulitzer Center to offer pro bono legal support to the Centers first cohort of Artificial Intelligence Accountability Fellows.

The ten journalists representing four continents are pursuing stories of local and global scope that touch on themes crucial to equity and human rights, such as AI in hiring, surveillance, social welfare, policing, migration, and border control.

Reporters Committee attorneys will work with the journalists to vet stories before they are published to reduce legal risk, and to provide other pro bono legal assistance related to newsgathering and First Amendment issues.

Were thrilled to partner with the Pulitzer Center on its new initiative supporting journalists reporting on the impact of artificial intelligence and surveillance in their communities, said Katie Townsend, deputy executive director and legal director for the Reporters Committee for Freedom of the Press. Our attorneys are looking forward to providing the AI fellows with much-needed legal support to help them pursue and publish this important work with greater confidence.

Reporting on the impact of AI technologies, especially in marginalized and vulnerable communities, is urgent and foundational to democracy, said Marina Walker Guevara, the Pulitzer Centers executive editor. We are grateful that the AI Fellows will have the support of the Reporters Committees world-class and dedicated attorneys as they pursue their stories.

The Pulitzer Center empowers a global community of journalists and media outlets to deepen engagement with critical underreported issues, bridge divides, and spur change. It supports more than 200 journalism projects annually that are published in local, regional and global outlets. The Centers K-12 and university programs connect journalists and stories with students and teachers, fostering critical thinking and media literacy in classrooms.

Through the AI Accountability Network, the Pulitzer Center seeks to address the knowledge imbalance on artificial intelligence that exists in the journalism industry, especially at the local level, and to build the capacity of journalists to report on this fast-evolving and underreported topic with skill, nuance, and impact.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on RCFPs work by signing up for their monthly newsletter and following them on Twitter or Instagram.

For media inquiries, contact the Reporters Committee at media@rcfp.org, or Sarah Swan at the Pulitzer Center, sswan@pulitzercenter.org.

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RCFP partnership with Pulitzer Center will support journalists reporting on AI, surveillance - Reporters Committee for Freedom of the Press

Religion has no place in a public school

A public school coach leading his team in prayers at a school activity cannot be assumed to be voluntary for the students. With the uneven balance of authority, pressure even duress is implicit. Players follow their coach. While peer pressure on students is intense, coach authority, teacher authority is more so.

In the late 1950s my public school day at George Washington Elementary started with the Pledge of Allegiance followed by the "Lord's Prayer." Later my public Eber Baker junior high conducted weekly "non-denominational" Protestant Christian religion classes. My parents wrote the required excuse for me, a Jewish child, to not participate. A couple of Catholic students and I were taken to a separate school room to do homework. I had no wish to participate in the indoctrination. It was also very discomforting to be singled out. I often had stomach aches on those religion class days.

I heard with deep distress the June 27, 2022, Supreme Court decision on Kennedy v. Bremerton School District that enables leading religious practices in public schools.

Our constitutions First Amendment protects us from the government establishing religion. The only proper place for prayer in a public school is an individual's voluntary and silent expressions a moment of silence.

Beth Babich, Marion

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Letter to the Editor: Religion, public schools and the Supreme Court - Marion Star

The three words that best describe the Supreme Courts decisions this term are text, history and tradition. If thats one word too many, try this: Originalism Rules! And thats a good thing.

The court considered several important constitutional cases this term. The split in most of these cases was six-to-three, with the conservative justices in the majority and the liberal justices in dissent.

In the biggest case,Dobbs v. Jackson Womens Health Organization, a five-justice majority ruled the Constitution has no right to obtain an abortion. This overturnedRoe v. Wade(1973) andPlanned Parenthood v. Casey(1992).

Nearly 50 years ago, Justice Byron White, in hisRoedissent, wrote that the errant ruling represented an exercise of raw judicial power. Similarly, John Hart Ely, an eminent scholar who supported abortion rights, stated thatRoewas not constitutional law and g(ave) almost no sense of an obligation to try to be.

>>>5 Monumental Cases That Highlighted the Supreme Courts 2021-2022 Term

Those views were reflected in the majority opinion forDobbs, written by Justice Samuel Alito. He noted that the right to an abortion is not in the Constitutions text, nor was it part of our nations history or traditions. Indeed, virtually every state outlawed abortion when the Constitution and the 14th Amendment were ratified.

The court also decided on an important Second Amendment case,NY State Rifle & Pistol Assoc. v. Bruen. Justice Clarence Thomas wrote the six-to-three majority opinion, striking down a New York law requiring law-abiding citizens who passed a background check to demonstrate a special needbeyond a general desire to defend oneselfbefore being permitted to carry a firearm outside the home.

The court said that such a restriction was not supported bydrumroll pleaseeither the amendments text or the nations historical traditions. The court further stated that the amendment was the product of an interest balancing by the people and that it was improper for a court to engage in a judge-empowering interest-balancing inquiry once the protections of the amendment had been properly invoked.

In an important religious liberty case,Kennedy v. Bremerton School District, Justice Neil Gorsuch wrote the six-justice majority opinion ruling that a school violated the free exercise and free speech rights of a high school football coach when it fired him for offering a silent post-game prayer at midfield. The court relied uponyou guessed ithistorical practices and the original meaning of the First Amendments text in reaching its decision.

The court also finally declared that the courts much-criticized three-part test for analyzing Establishment Clause cases, promulgated inLemon v. Kurtzman(1971)which Justice Antonin Scalia once described as some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buriedwas indeed dead.

The court also sided with religious adherents in other significant religious liberty and free speech cases, includingCarson v. Makin,Shurtleff v. City of Boston, andRamirez v. Collier. Senator Ted Cruz also won a significant victory against the Federal Election Commission in which the court, again by a six-to-three vote, held that an FEC rule violated the First Amendment rights of candidates wishing to make personal loans to their own campaigns to engage in pure political speech.

And inNFIB v. OSHA,West Virginia v. EPAandAlabama Assoc. of Realtors v. HHS, the court (again via 6-3 votes) held that separation-of-powers principles require Congress to speak clearly before an administrative agency consisting of unaccountable bureaucrats can exercise nearly unlimited power over decisions of great economic and political significance.

>>>Supreme Courts Ruling in West Virginia v. EPA Delivers Win for Self-Government, Affordable Energy

In his dissenting opinion in the infamous case ofDred Scott v. Sandford, Justice Benjamin Curtis stated: When a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men who, for the time being, have power to declare what the Constitution is according to their views of what it ought to mean.

During this momentous term, the court made great strides toward interpreting the Constitution with fidelity and restoring the rights of all Americans to govern themselveswith the exception of those few individual rights that are delineated in our Constitution or firmly rooted in our nations historical traditionsdebating, persuading and deciding contentious issues directly or through their elected representatives.

In terms of interpreting and adhering to the Constitution, I give the court an A-plus.

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Grading the SCOTUS: Originalism Rules, and That's a Good Thing - Heritage.org

Gun Owners of America (GOA) is suing New York state over new restrictions on the public carrying of firearms that were rushed through the state Legislature and signed into law after the U.S. Supreme Court struck down the states requirement that a carry permit applicant must demonstrate a special need for self-defense.

The lawsuit takes aim specifically at the Concealed Carry Improvement Act (CCIA), which New York Gov. Kathy Hochul, a Democrat, signed into law earlier this month. It takes effect on Sept. 1.

At the time, Hochul denounced the court for issuing what she called a reckless decision removing century-old limitations on who is allowed to carry concealed weapons in our statesenselessly sending us backward and putting the safety of our residents in jeopardy.

The name of the statute itself is ironic because it is New Yorks attempt to flout the Supreme Courts June 23 ruling in New York State Rifle and Pistol Association v. Bruen, according to the legal complaint (pdf) filed July 11 in U.S. District Court for the Northern District of New York. The new law puts into effect several blatantly unconstitutional new infringements of the enumerated right to keep and bear arms, the complaint states.

The case is Antonyuk v. Bruen, 1:22-CV-734. The plaintiffs are gun owner Ivan Antonyuk, Gun Owners of America Inc., its foundation, and its New York affiliate. Defendant Kevin Bruen is superintendent of the New York State Police.

We are confident that we will pretty much overturn everything they did in this legislative package because they were clearly in violation of the direct ruling in New York State Rifle and Pistol Association v. Bruen,Sam Paredes, the executive director of Gun Owners of California, a member of GOAs board of directors, and treasurer of its affiliated foundation, told The Epoch Times in an interview.

Specifically, the lawsuit targets the CCIAs good moral character requirement for permit applicants, the requirement that applicants supply character references at in-person interviews with police and submit their own social media posts for government inspection, the vastly expanded ban on sensitive locations where concealed weapons may not be brought, and a raft of new administrative fees the lawsuit calls a Second Amendment tax.

Applicants must undergo 18 hours of combined training where presently its only four hours. The fact of the matter is that we know that this is just an angry, vicious response to the Supreme Court ruling because concealed carry weapons permit holders in New York are amongst the most law-abiding of all citizens in the state, just like they are in California and across the country, Paredes said.

The four-hour training requirement and background checks were sufficient to maintain that level of purity amongst the CCW [i.e. concealed carry weapons permit] holders, but the new mandates serve no purpose other than to limit gun ownership, he said.

So what they did is they shifted from the good cause [requirement] to a display of good moral character. There is no plain definition of good moral character in New York statutes or California statutes, or any statutes.

So, they have added this great amount of subjectivity to the process, he said. Subjectivity is the enemy of the Second Amendment, and they are adding it in spades.

Paredes recalled that California Attorney General Rob Bonta, a Democrat, also recently embraced his states own good moral character requirement for permit applicants, a development The Epoch Times reported on.

In a statewide memo to law enforcement, Bonta encouraged permit-issuing authorities to include the absence of hatred and racism as a positive factor in determining whether to grant a permit, leading to concerns among Second Amendment advocates that an applicants political views, expressed on social media or elsewhere, could lead to a permit denial.

Although Paredes said as far as he knows the CCIA doesnt specifically reference hatred or racism, these potentially inflammatory terms, which are malleable in todays politically polarized environment, could still somehow find their way into the New York permitting process.

On social media people will say stuff that they dont understand what it means, or they do understand, but they want to express something. And they have the First Amendment right to do so. Now, New York and California want to use the expression of a First Amendment right, as a reason to deny a Second Amendment right.

You cannot use a constitutional right to invalidate another constitutional right, Paredes said.

The Epoch Times reached out to state officials.

We are not commenting, the New York State Police replied by email.

The office of New York Attorney General Letitia James, a Democrat, didnt respond by press time.

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Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.

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2nd Amendment Advocacy Group Sues New York Over New Concealed Carry Restrictions - The Epoch Times