Last month, the U.S. Supreme Court heard Kennedy v. Bremerton School District, a case out of the state of Washington about the speech rights of government employees and the freedom of religion in public schools. For nearly two hours, the justices asked questions reflecting the court’s intense interest in religion cases, evident from the number of those cases it has agreed to review in the last few years.
While parties perceived as representing the religious side are on an unprecedented winning streak, this case presents a complex choice. In this case, a government employee asserts a right to pray on the job that conflicts with decades of settled precedents that protect the religious freedom of students.
The case was brought by a former assistant football coach who had a history of praying with players in the locker room and on the field before the school district learned of the coach’s practices and asked him to stop. The coach announced on social media that he thought he “might have been fired for praying,” inspiring a flood of emails, letters and phone calls to the school.
The case is not about the school’s objection to a “brief private prayer,” as the coach’s attorneys have tried to portray it. Instead, it involves a series of efforts by the school to meet the coach’s religious needs while upholding the school district’s interest in protecting religious freedom and maintaining order on the field.
The coach agreed to stop leading players in prayer in the locker room and giving overtly religious speeches after games, but he insisted he had a free speech and free exercise right to pray on the 50-yard line immediately after games—including with students if they wished to join him. When his contract expired, he didn’t reapply. He sued the school district.
Lower courts ruled for the school district and the Supreme Court granted review to decide when a public-school employee who prays on the job is engaged in government speech that lacks First Amendment protection and whether the Establishment Clause prohibits such religious expression with students.
Protecting Voluntary Religious Liberty for Students
For more than 50 years, the court’s school prayer decisions have stood as a bulwark against government-imposed religious exercises in the public schools. Most recently in 2000 (Santa Fe Independent School Dist. v. Doe), the court held that school-sponsored prayers at football games led by a student pursuant to a school election and delivered over the loudspeaker violated the Constitution’s ban on an establishment of religion.
Central to these decisions is the protecting voluntary religious liberty for students by avoiding school sponsored religious exercises.
In an obvious effort to avoid implicating the school prayer cases, counsel for the coach in Kennedy compared the coach’s right to pray with those of students whose private, non-disruptive expressions of religion are protected speech.
When asked why the coach insisted on praying on the field immediately after the game where students could join him, counsel said it was like a soccer player scoring a goal or a football player scoring a touchdown and expressing religion immediately in that place on the field. The gathered audience does not make the student’s expression that of the school, he argued.
While that may be so, the example ignores key differences between players and coaches. A coach’s on-field prayers at the end of the game do not resemble the spontaneous or momentary religious exercise of student athletes.
Citing Tinker v. Des Moines Independent Community School District, a case that protected students wearing armbands in protest against the Vietnam War, counsel for the coach repeatedly suggested that teachers and students are similarly situated, since neither “shed their constitutional rights at the schoolhouse gate.”
Coach’s Claims Conflict With Long-Standing Consensus
Yet, it is fundamental that teachers and students are not the same when it comes to enforcing the First Amendment. The distinction between the private speech rights of students and governmental role of school officials is central to the protection of religious liberty in public schools.
In an amicus brief in support of the school district, a diverse group of religious organizations, including the group I represent, explained how the coach’s claims conflict with a long-standing consensus about religion in the public schools.
Supported by a broad and diverse array of religious and civil-liberties groups, privately negotiated guidelines were developed beginning in the 1990s to help reduce conflicts and educate parents, students and public school officials about the law.
These guidelines, which recognized private rights to prayer and religious expression as well as limitations on the school and its employees, were substantially incorporated into presidential guidelines that remain today. Public school guidance from the Clinton administration and continuing through the Trump administration recognizes the distinct roles of teachers and students in order to protect religious freedom of students.
Teachers, coaches, and school administrators are representatives of the state, and they are properly prohibited from encouraging or discouraging religious activity when acting in those capacities. They serve diverse families from a variety of faiths and none without imposing religious exercises on their students.
In this case, the school simply sought to enforce its reasonable and constitutionally-sound policies. No coach or other school official should be able to avoid responsibility as an agent of the state by engaging in religious exercises on the job and simply claiming that it is personal.
This case could fundamentally change the expectations of parents and students who rely on the public schools to offer educational and extra-curricular opportunities without regard to religion. In short, allowing a school official to use the position of privilege, power, and influence to pressure students in matters of religion will harm religious freedom.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Holly Hollman is general counsel and associate executive director of Baptist Joint Committee for Religious Liberty (BJC). She provides legal analysis of church-state issues and leads BJC’s amicus efforts, including joining in an amicus brief in this case. She is an adjunct professor of law at the Georgetown University Law Center and co-host of the Respecting Religion podcast.